State Loses Another Legal Round In Vt. Yankee Relicensing
06/26/12 2:05PM By John Dillon
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A federal court has handed the state of Vermont another loss in its ongoing challenge to Vermont Yankee's operating license.
The Circuit Court of Appeals in Washington rejected the state's arguments that the new 20-year license was invalid because Entergy Vermont Yankee failed to get a new water quality permit.
The court found Vermont missed its chance to raise the issue before the Nuclear Regulator Commission. Neil Sheehan is spokesman for the NRC.
"What the D.C. Circuit Court of Appeals found was there were multiple windows when the state could have brought this up as an issue, but it did not do so," he said. "And by not doing so it's forfeited its right to judicial review."
The Court of Appeals ruling comes after the state lost a separate Yankee case in federal court in January. And the state had high hopes for this case. Public Service Commissioner Elizabeth Miller - an experienced litigator - argued the case personally before the D.C. Circuit Court of Appeals.
The state's argument boiled down to this: Entergy Vermont Yankee didn't get a new water quality certificate before the NRC granted a new 20 year license. Therefore, the new NRC license is invalid.
But Vermont Law School professor Patrick Parenteau said the court ruled on a fundamental point of administrative law.
"Where there's a clear process to raise an issue, before the commission - that‘s the key - before the commission itself - that you can't miss that opportunity and expect the circuit court to hear your argument," he said..
But Parenteau does not blame the Shumlin administration for failing to raise the water quality question in a timely fashion.
"Now, this is not Liz Miller's fault, okay? All of this occurred on the Douglas administration's watch," he said. "So if there's finger pointing to be done, that's where the fingers need to be pointed. Because by the time the Shumlin Administration got this case, it was too late."
Yankee uses the Connecticut River for cooling water. And the court's ruling did not get to the underlying water quality issues raised by the nuclear plant's operation. That was frustrating for the Shumlin administration. John Beling is public advocate at the Department of Public Service.
"We're disappointed that the court declined to address our substantive water quality argument and instead ruled, based upon kind of a technical issue, a procedural issue," Beling said. "We felt they should accept our petition and that the water quality certification from 1970 is not adequate to cover another 20-year federal license."
The New England Coalition, an anti-nuclear group, joined the state in its appeal. Chris Kilian, Vermont director of the Conservation Law Foundation, represented the coalition in the case.
"The New England Coalition, and all Vermonters, have now been deprived of the right that was guaranteed to them by Congress, to have a say in how this plant affects clean water," he said..
Parenteau, at Vermont Law School, said the pressure is now on Vermont to issue a strong state water permit for Yankee that limits hot water flowing into the river.