After Ruling, Legislative Leaders Look To Public Service Board For VY Decision

01/20/12 7:34AM By John Dillon
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AP/Toby Talbot
A federal judge has ruled that the state of Vermont cannot force Vermont Yankee to shut down in March, but the ruling left the door open for the Public Service Board to decide whether to issue a certificate of public good.
(Host) A federal judge has ruled in favor of Entergy Vermont Yankee in its lawsuit over the continued operation of the Vermont's only nuclear power plant.

The ruling effectively means the state cannot force the plant in Vernon to shut down in March, as Governor Peter Shumlin wants to do.

VPR's John Dillon has more:

(Dillon) U.S. District Judge J. Garvan Murtha says federal law trumps the Vermont Legislature's ability to determine the future of a nuclear power plant.

Vermont is the only state in the country that gives lawmakers a say in whether a plant can continue to operate. After a history of radiation leaks and misstatements by plant officials, the Vermont Senate two years ago denied Yankee permission to operate past March of this year. But Murtha's 102 page ruling blocks the state from enforcing that law.

Murtha said that when lawmakers debated a bill called Act 160 that gave them a veto over Yankee's continued operation they were clearly concerned about safety at the plant. And the judge said that's an area that is expressly pre-empted by federal law.

Murtha wrote: "This Court holds there is overwhelming evidence in the legislative record that Act 160 was grounded in radiological safety concerns and the concomitant desire to empower the legislature to act on those concerns in deciding the question of Vermont Yankee's continued operation."

(Dillon) Attorney General Bill Sorrell said he was disappointed in Murtha's ruling, and was reviewing it to see whether the state should appeal.

(Sorrell) "We felt good about the law that we argued to the court, existing U.S. Supreme Court law. So, no small part of any appeal would be arguing that the U.S. Supreme Court has said that states have legitimate interests in passing upon issues of nuclear power plants operating within a state's borders."

(Dillon) Governor Peter Shumlin -who led the effort two years ago in the state Senate against Vermont Yankee - also said in a statement that he was disappointed. He said he continues to believe the plant should close in March.

Entergy released a statement saying the ruling was good news for its employees, the environment and New England residents.

But while the ruling clearly means the plant will continue to operate past March, it does not cut the state entirely out of the process.

Legal observers said Murtha left a role for the Public Service Board -which regulates utilities - to review Yankee's future.

Pat Parenteau is a professor at Vermont Law School. He says the PSB can now decide whether Entergy Vermont Yankee gets a new 20-year operating license from the state, called a certificate of public good, or CPG.

(Parenteau) "That's the way I read this. The judge specifically rejected a much broader argument that Entergy had made, which is the state doesn't even have authority under Act 248 over this plant because it's a merchant plant that sells wholesale power. And he didn't buy that argument. So he has not said that this plant can continue to operate without a new CPG."

(Dillon) Senate President John Campbell and House Speaker Shap Smith agreed. They said they expect the Public Service Board to now take up the question of whether Yankee should get a new certificate of public good.

For VPR News, I'm John Dillon in Montpelier.

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