State: Entergy has failed to make case for federal injunction

Google Earth image of the Vermont Yankee plant in Vernon, Vt.

This article first appeared on The Commons. Commons News Editor Randolph T. Holhut contributed to this report.

BRATTLEBORO—Two days of hearings in U.S. District Court concluded Friday afternoon with both sides making their final arguments over whether Entergy Nuclear should be granted an immediate preliminary injunction that would block any effort by the state of Vermont to close the Vermont Yankee nuclear plant in Vernon next year.

Kathleen M. Sullivan, of the New York-based law firm of Quinn Emanuel Urquhart & Sullivan, the lead attorney for Entergy, spent about three hours Friday morning covering many of the same points that she made in Thursday’s opening statement — that Entergy believes the state of Vermont overstepped its bounds in denying Vermont Yankee permission to operate beyond the expiration of its original 40-year license on March 21, 2012.

The state’s legal team, led by Assistant Attorney General Bridget Asay, reiterated Vermont’s contention that Entergy cannot claim that Vermont is attempting usurp federal authority because of previous agreements that the company made with the state.

Judge J. Garvan Murtha will consider these arguments as he decides whether to issue an injunction that would allow the plant continue operating while Entergy’s lawsuit against the state of Vermont makes its way through the courts.

Murtha said Friday that he will likely hand down his decision regarding the injunction after the Fourth of July holiday.

Echoing her opening statement on Thursday morning, Sullivan again said that state lawmakers were seeking to oversee the safety of Vermont Yankee, something that is strictly under the purview of the U.S. Nuclear Regulatory Commission.

She said the Vermont Legislature’s motivation behind passing Acts 74, 160 and 89 were purely based on safety, and that the state “engaged in a semantic exercise” to find “code words” that were substitutes for the word “safety.”

Sullivan also repeated the points made Thursday by John Herron, president, CEO, and chief nuclear officer for Entergy Nuclear, about the economic harm that would occur if an injunction was not granted.

Herron said if Vermont Yankee is forced to shut down temporarily, Herron said the company would lose about $20 million a month. Even with the injunction, he said the plant might have to close before March 2012 due to uncertainty surrounding the timing of its next scheduled refueling.

Entergy Nuclear must make a decision about buying new fuel assemblies for Vermont Yankee’s reactor by July 23. The plant’s next refueling outage is scheduled for October, at an estimated total cost of about $150 million. Herron said Entergy replaces about a third of the reactor’s fuel rods during refueling outages, which generally happens every 18 months, at a cost of more than $65 million.

Sullivan said Friday that if Vermont Yankee were to shut down next year, it would trigger the loss of more than 1,000 jobs, both at the plant and in the surrounding communities.

In her closing argument on Friday, Asay argued that federal law give states the right to regulate non-safety related aspects of nuclear power, such as plant reliability, environmental impacts and economics.

Asay said that the NRC worked with the state to develop Act 189, which in 2008 authorized the state to conduct a reliability study of Vermont Yankee. She cited a letter from the NRC sent to then-Gov. Jim Douglas, responding to a request to have the NRC work with the Vermont Public Service Board to cover what areas were appropriate for the state to examine in its study.

Asay said when it came to assessing plant reliability, the NRC and Vermont’s authority overlapped, and that the NRC had no objection to that.

In her opening statement on Thursday, Assay said that the core of Entergy’s case against the state — that it was regulating matters that under the NRC’s authority — rang hollow, because the company has promised several times over the course of nearly a decade in legal contracts and testimony that it would not raise the issue of federal pre-emption.

She said Entergy had plenty of time to dispute those agreements, but chose not to until now. She said Entergy was trying to “avoid a consequence they agreed to years ago.”

Entergy is suing the state to nullify a 2006 Vermont law that gives the Legislature the authority to determine whether or not Vermont Yankee will be permitted to continue operation. The law stipulates that permission must be granted by both the Vermont Senate and the House of Representatives.

In February 2010, the Vermont Senate voted 26-4 to deny the Public Service Board permission to issue a certificate of public good to continue operating the 38-year-old Vermont Yankee plant for an additional 20 years.

In March of this year, the NRC approved a 20-year license extension for Vermont Yankee.

In an interview after Friday morning’s proceedings, Vermont Attorney General William Sorrell said that Entergy still has not made a case for federal pre-emption of Vermont law and was “cautiously optimistic” that his legal team would prevail.

Entergy is suing the state to nullify a 2006 Vermont law that gives the Legislature the authority to determine whether Vermont Yankee will be permitted to continue operation. The law stipulates that permission must be granted by both the Vermont Senate and the House of Representatives.