Court Hearing Considers Central Issue Of Yankee Lawsuit
06/22/11 5:50PM By Steve Zind  Download MP3
(Host) A ruling in a court hearing this week in Brattleboro will likely provide a clear indication of the outcome of a lawsuit involving the state and the owners of the Vermont Yankee Nuclear Power Plant.
VPR's Steve Zind reports.
(Zind) Entergy Corporation has filed a lawsuit challenging whether Vermont has the authority to force the plant to shut down. That suit is scheduled to be heard by federal district court judge J. Garvan Murtha in October.
But this week, Entergy is asking Murtha to grant the company a preliminary injunction to allow it to continue to operate the plant while the lawsuit is being decided.
Speaking on VPR's Vermont Edition, Vermont Law School professor Patrick Parenteau said Murtha will have to consider the same central issues this week that he'll weigh in October.
(Parenteau) "Entergy is trying to make the argument they need an order right now allowing them to continue operating beyond the deadline of March 21, 2012. I will say that's a very unusual request at this stage of the case. What they're really asking is that judge Murtha agree with them on the merits and order the state has to allow them to continue operating. That's going to be a major bone of contention in this hearing, I think."
(Zind) At issue is whether the state has authority to close the plant - even though the federal Nuclear Regulatory Commission has granted Vermont Yankee a new license.
A 1983 U.S. Supreme Court decision gives states some authority over nuclear power plants as long as their decisions aren't based on safety concerns. The court said safety issues are decided only at the federal level.
Parenteau says the state of Vermont has strong reasons other than safety to close the plant, including economic concerns.
(Parenteau) "The state has made a very plausible argument that they're shutting it down for many reasons: Land use, economics, environmental considerations."
(Zind) But Vermont Law School professor Don Kreis says there's a significant difference between the Vermont Yankee lawsuit and the 1983 Supreme Court case.
The 1983 ruling involved a utility whose electric rates were regulated by the state of California. That gave California a stake in the utilitys' well being. But Vermont Yankee sells its power on the wholesale market and its rates aren't regulated by Vermont.
(Kreis) "Should something happen at Vermont Yankee that makes that facility uneconomical, that problem does not get placed on the back of Vermont utility customers. So the state's claim that it is engaging in economic regulation is, I don't want to call it dubious, but it is arguable."
(Zind) Judge Murtha's ruling on the request by Entergy for permission to continue to operate the plant is expected next month.
It's likely any ruling will be appealed. Ultimately, the case is expected to reach the U.S. Supreme Court.
For VPR news, I'm Steve Zind.