Entergy criticizes state’s legal arguments
By Susan Smallheer
Staff Writer | November 13,2012
AP FILE PHOTO
This photo shows the Vermont Yankee nuclear plant in Vernon.
BRATTLEBORO — The state of Vermont is trying to rewrite history, as well as the Atomic Energy Act, attorneys for Entergy Nuclear claimed in recent filings in the 2nd Circuit Court of Appeals in New York.
The reply brief was in response to the state’s appeal of U.S. District Judge J. Garvan Murtha’s decision in January, which found two Vermont laws overstepped state authority when it came to regulating nuclear power.
“This court should reject defendants’ effort to rewrite the law of AEA preemption, and thus should reverse on Entergy’s cross-appeal,” wrote attorney Kathleen M. Sullivan, Entergy’s lead attorney in the federal versus state preemption case.
“Defendants set forth an approach to AEA preemption that would render it entirely toothless,” Sullivan added.
It is the Atomic Energy Act that gives the federal government the responsibility for safety at the country’s 103 commercial nuclear reactors, leaving the issues of economics and environment to the states.
The state’s appeal has focused on those issues, saying that becoming nuclear-free has long been an energy goal of state energy planners.
Entergy argued that because Vermont Yankee is currently a merchant wholesale plant, and doesn’t sell power to any Vermont utilities, there is nothing standing in the way of the state’s goal of more renewable energy.
The state has argued, Entergy said, that simply the existence of Vermont Yankee, which produces about 640 megawatts of power, skews the market, suppressing the renewable energy market.
“Defendants hypothesize that the Legislature acted from the non-safety purpose of facilitating Vermont retail utilities’ purchase of power from non-nuclear sources, but such a purpose is not plausibly advanced by shutting down Vermont Yankee,” Entergy’s lawyer wrote.
Vermont utilities are not forced to buy power from Vermont Yankee and, in fact, Green Mountain Power is currently buying power from the Seabrook nuclear plant in New Hampshire.
“The district court’s comprehensive review of the legislative history confirms that safety concerns drove Act 74’s enactment,” Entergy noted.
Entergy’s submittal of its reply brief to the state of Vermont’s legal arguments sets the stage for oral arguments in front of a panel of appeals judges at the 2nd Circuit Court of Appeals in New York City. Both sides are expected to fight the issue all the way to the U.S. Supreme Court.
Entergy filed suit last year against the state for its efforts to shut down Vermont Yankee, saying the Vermont Legislature had repeatedly tried to gain control over safety issues at Vermont Yankee. Safety is the sole responsibility of the federal government, in particular the Nuclear Regulatory Commission.
Murtha’s decision sided with Sullivan’s 2011 trial arguments that Vermont legislators’ real concern was nuclear safety when they crafted Act 160 and Act 74, which gave the Vermont Legislature veto power over Yankee’s continued operation.
Entergy Nuclear has received approval from the NRC to continue operating for another 20 years to 2032; but Entergy still doesn’t have approval from the Vermont Public Service Board, which has to grant Entergy a certificate of public good to go with the NRC approval.
The PSB isn’t expected to rule until fall 2013.