• A rebuff on Yankee
    August 18,2013
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    A U.S. appeals court last week ruled that the Vermont Legislature had no right to block continued operation of the Vermont Yankee nuclear power plant. It was a sharp rebuke of the Legislature and the years-long campaign of Gov. Peter Shumlin and others to shut down the plant.

    The court left authority for regulation of the plant where it had always been — with the federal Nuclear Regulatory Commission on matters of nuclear safety and with the state Public Service Board on other matters. The PSB still must decide whether Entergy Nuclear, owner of the plant, will receive a certificate of public good allowing it to extend its operations for another 20 years. The court’s ruling means the PSB must base its decision, not on issues of nuclear safety, but on economic, environmental or other considerations.

    Vermont Yankee is in an unusual position: Now that it no longer sells power to Vermont’s utilities, whether the state’s utilities are getting a good deal from Yankee is no longer germane to the question of whether operation of the plant is in the public good. The good that the plant does for Vermont is like the good created by any other company — doing business in the state and employing people. It could be argued that the plant also contributes to the public good by producing a significant bloc of power, without producing greenhouse gases, for the broader New England grid.

    The trustworthiness of Entergy was a major issue for the Vermont Senate when it refused to allow the PSB to take up Entergy’s request for a certificate of public good. Yankee had suffered a spate of problems, including revelations that it was leaking radioactive tritium into the ground. Yankee officials then provided false information to the Legislature about the leaks. In a separate incident, the collapse of a cooling tower called into question the company’s commitment to maintenance and management of the physical plant.

    An additional blow to trust came when the company announced it wanted to spin off ownership of the plant to a highly leveraged, separate entity. It seemed like the kind of shady Wall Street maneuver that had devastated the nation and may have been designed to allow the company to get out from under the burden of paying for decommissioning.

    Whether any of these problems translate into denial of a certificate of public good is an open question. Questions of trust and reliability are magnified at a nuclear plant primarily because the stakes in its sound operation are so high. If we can’t trust the company to maintain its cooling tower or to tell the truth, how can we trust it to avoid a meltdown? But the connection between trust and a meltdown gets into the question of nuclear safety, which is beyond the legal purview of the PSB.

    Lately, questions have arisen about the financial strength of Entergy, owing to the layoffs of about 30 employees announced at Yankee and additional employees at other plants. The PSB has some questions about that. Meanwhile, the long-term question of nuclear waste continues to hang over the entire nuclear industry.

    With the safety question removed from the equation, the PSB may find the basis for denial of a certificate has grown thin. Meanwhile, Attorney General William Sorrell will have to decide whether to appeal the state’s case to the whole appeals court or the U.S. Supreme Court. The sharp reversal he suffered at both District Court and the Court of Appeals suggests it would be a futile exercise to try his chances before the business-friendly Roberts court.

    Meanwhile, the appeals court ruling may have political ramifications. Sorrell rebuffed, barely, a serious challenge in the Democratic primary last year by T.J. Donovan, the Chittenden County state’s attorney. During that campaign, Donovan took Sorrell to task for losing the Yankee case in U.S. District Court. Whoever runs against Sorrell, in primary or general election, is likely to make an issue of the failure of the appeal. Sorrell had said he had a good case for his appeal. It turns out it wasn’t so good.

    Meanwhile, the appeals court ruling thwarts the long political campaign by Shumlin and by members of the Legislature to give the Legislature the power to deny Yankee a certificate of public good. Republicans, including former Gov. James Douglas, had argued that reviewing Yankee’s operations was the job of the PSB and that the Legislature should not involve itself. It would subject a complex technical question to the crosscurrents of politics.

    The court’s ruling now supports the Douglas position, and Yankee’s fate rests with the PSB.
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