Google Earth image of the Vermont Yankee plant in Vernon, Vt.
U.S. District Court Judge J. Garvan Murtha has ruled that Entergy can continue to operate the Vermont Yankee Nuclear Power Plant in Vernon past a March 21 state-mandated shut down date.
In the decision handed down on Thursday, Murtha struck down several state laws, one of which (Act 160) prohibits the Louisiana-based corporation from running the aging nuclear plant beyond its current 40-year license without legislative approval. The other (Act 74) requires Entergy to obtain permission from the General Assembly to store high level nuclear waste at the site.
In February 2010, the state Senate voted to deny Entergy an opportunity to seek a 20-year renewal of its license to operate Vermont Yankee from the Public Service Board.
Download a copy of the Murtha Decision on Entergy v. Shumlin et. al.
Murtha wrote that the Atomic Energy Act preempts Vermont law. Consequently, the state cannot bring an enforcement action against Entergy, he wrote.
“Plaintiffs have demonstrated they would be irreparably harmed by Vermont Yankee’s closure under preempted laws if Defendants enforced Act 160, or the preempted provision in Act 74, or if Defendants conditioned approval of a petition for continued operation on the existence of a below-market power purchase agreement with Vermont utilities,” Murtha wrote.
The Vermont Public Service Board will now decide whether to issue a certificate of public good to Entergy that would allow the plant to continue operation for an additional 20 years.
Entergy filed a lawsuit against the State of Vermont in April of last year, a month after the Nuclear Regulatory Commission extended VY’s operating license for another 20 years in March 2011.
Entergy Corp. attorneys argued that nuclear safety was the motivation for the Vermont Senate’s 2010 vote.
Entergy also claimed that the Vermont Legislature regulated the plant on nuclear safety grounds through a careful and planned use of “code words.” Legislators substituted words and phrases like “economics,” “reliability,” and “public safety” to circumvent the NRC’s authority over all things nuclear safety, Entergy’s lead attorney Kathleen Sullivan told Murtha during the trial last fall.
The state’s attorneys said officials in Vermont were motivated by a deep mistrust of Entergy and misstatements by employees about the existence of underground pipes that leaked tritium into groundwater.
The Vermont Attorney General also cited failed negotiations over a power purchase agreement and over plans for an energy future founded on renewable-energy sources.
Reaction to the decision was swift.
Gov. Peter Shumlin, who led the Senate in the vote against the relicensure in 2010 when he was President Pro Tempore, was personally listed as a defendant in the suit.
The governor said he was “very disappointed” in the ruling.
“Entergy has not been a trustworthy partner with the state of Vermont,” Shumlin said in a statement. “Vermont Yankee needed legislative approval 40 years ago. The plant received approval to operate until March, 2012. I continue to believe that it is in Vermont’s best interest to retire the plant. I will await the Attorney General’s review of the decision to comment further on whether the state will appeal.”
House Speaker Shap Smith and President Pro Tem John Campbell emphasized that the state still has a say in the fate of the aging nuclear power plant.
“Under this decision, Vermont Yankee remains required to have a Certificate of Public Good issued by the Public Service Board in order to operate,” they said in a statement. “We expect the Public Service Board will consider the issue of continuing operation in its pending docket. The state will look closely at the decision to see what boundaries the Court has set for the issuance of a Certificate of Public Good and will hear from all parties to ensure that the best interests of Vermont and its citizens are represented in this process.”
Brad Ferland, president of the Vermont Energy Partnership, a business association that cites Entergy as a member, said the decision was “well-reasoned.”
“The judge’s decision is good news for Vermont,” Ferland wrote in a statement. “We hope today’s ruling will be the basis for fresh thinking and reflection on the very positive role the plant can and should play in the state’s future. We encourage policy makers to pursue this course instead of protracted, expensive, divisive legal battles.”
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Vermont needs to vigorously appeal this decision. Perhaps New York would help Vermont in this appeal. (Many New York residents would like to close down the old Indian Point Nuclear Plant.) All states should have the right to control an industry that has such a significant impact in the lifes of it’s citizens as VY has over our lifes.
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Murtha essentially has acted to muzzle open and free political debate on the floors of the General Assembly. Vermont lawmakers will no longer feel free to air the views of their constituents or themselves.
And Sorrel and crew have proven themselves to be lousy lawyers.
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This is a great victory for Vermont’s taxpayers, business community, and environment. Intelligence and level headedness have won out over fear and ignorance!!
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The decision yesterday by U.S. District Judge Murtha in the case brought by Entergy against the State of Vermont is a clear victory for the plaintiff and one more rebuff of Vermont’s Legislature for making laws that are unconstitutional.
Vermont Attorney General Sorrell sits in an even darker shadow for apparently failing to provide proper legal guidance to the Legislature at the time these laws are considered. Even to a layman the outcome of this case was obvious long before it was filed. The Commerce clause of the Constitution would prevail and Judge Murtha has ruled correctly.
Whether a Vermonter is for or against nuclear power generated in Vermont, one cannot fail to recognize that in this case and in prior cases dealing with election laws and prescription drug information, Vermont continues to step beyond the U.S. Constitution and has a losing record when challenged in Federal court. Let’s hope that wisdom will prevail and that Vermont will not appeal this case to waste yet more money.
Vermonters deserve better from their Governor, their Legislature and their Attorney General. This and prior litigation at the Supreme Court has unnecessarily wasted millions of taxpayer dollars.
Voters should pay heed to these events and elect people who have greater respect for the Constitution and who will resist the ideology-driven law-making.
Finally, kudos to those in the Vermont Senate who voted against these laws that have been found unconstitutional.
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Entergy Nuclear Vermont Yankee is no “cottage industry”. This is yet another instance of judicial rulings favoring the 1%.
Rep. Jim McCullough
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Who said it was a “cottage industry?” And as a Representative of Vermonters, do you have a point that you would like to make with this sort of rhetoric?
I’m pretty sure that more than 1% of Vermonters, distributed across a range of incomes, benefit from a form of safe, efficient power generation using advanced technology that doesn’t dam up waterways, destroy skylines or spew toxic gasses into the atmosphere.
Perhaps those are the cottage industries you are referring to?
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Rep. Jim McCullough, you are correct!
I for one wonder how much this judge cost to make his ruling?
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There was never any good reason for Governor Shumlin and the Senate to shut down Vermont Yankee and it’s good to see logic prevail in the end. Vermont Yankee provides abundant, affordable and clean power to the state; its economic and environmental benefits are substantial.
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The good news in all of this is that for the first time in months, 1,200 Vermont Yankee employees can go to work tomorrow without worrying about whether they are going to lose their jobs.
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Mr. Kerin, you may disagree with the ruling, but I am shocked and appalled that you (or any one) would accuse a federal judge of being corrupt with absolutely no evidence whatsoever. Everyone associated with this case knew there was a substantial risk of federal pre-emption.
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David Usher,
The judge made a rational decision, as foreseen by legal experts and laymen. The “we-can-do-anything-we-want-to” irrational hubris that leads the Democrat legislature to enact laws that are unconstitutional should end. Vermonters deserve better.
Vermont Yankee’s production is about 620 MW x 8,760 hr/yr x 0.92 capacity factor = 4,996 GWh/yr. This is low-cost (about 5.5c/kWh), CO2-free, 24/7/365, high-dispatch-value energy from a facility with a 60-year useful service life.
Lowell Mountain wind turbine production is about 63 MW x 8,760 x 0.32 capacity factor = 177 GWh/yr. This is high-cost, (with subsidies about 9.5c/kWh, per GMP; without subsidies about 15c/kWh), not quite CO2-free, intermittent and variable, zero-dispatch-value energy from a facility that has a useful service life of about 20 years. Because the energy is intermittent, Lowell needs the support of quick-ramping gas turbines to ramp up when wind energy ebbs and ramp down when wind energy surges; such part-load-ramping operation is highly inefficient, i.e., more fuel and CO2 emissions/kWh.
It would take 28 Lowell Mountains to equate Vermont Yankee. There would be visual eyesores all over the state, emitting health-damaging infrasound and low frequency noise.
May be the Green Party people in capital-rich Germany would want this, but no serious person would want this in capital-poor Vermont.
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Addition to the above comment
It would take 28 Lowell Mountains costing 28 x $157.5 million = $4.41 billion to equate Vermont Yankee which costs Vermont next to nothing. There would be visual eyesores all over the state, emitting health-damaging infrasound and low frequency noise.
May be the irrational Green Party people in capital-rich Germany would want this, but no rational person would want this in capital-poor Vermont.
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If the state plans to appeal this decision, how much is it going to cost Vermonters? We cannot afford to pay for any more of the state’s unnecessary legal bills. We must demand that the government show us how much the fight with Entergy cost us and how much more it will cost for an appeal and let us decide what to do.
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This is great news for Vermont. Why is everyone so reluctant to openly acknowledge how important Yankee is to our state? It keeps our power bills low, it provides people with jobs, and helps us keep the lights on in our homes and our businesses running.
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I am not sure that this ruling will mean much to Vermont electric rate payers, since no utility has a contract with VY and the PSB has not given VY a ‘good house keeping seal of approval’ past March. So VY will continue to generate power to be sold outside of Vermont.
It should be interesting to see how the Vermont Utility Companies react. Will they initiate negotiations with VY. I also wonder if the law suits, filed by GMP and CVPS, were really leverage items to be used in any future negotiations. Meaning they will drop their law suits for a better purchase rate.
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I cannot believe that our state would continue to fight to shut down Vermont Yankee. Are they seriously that short sighted that they’re willing to pursue an outcome that would lead to job losses and the end of low-cost power for our state?
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…duuuh. Vermonters were fooled into wasting a lot of tax payer and others time and money fighting VY instead of using that money for doing something constructive for the State. ave been [For example, think of how much LIHEAP funds could have added if all the anti-VY effort were applied there; or to schools or to you name it.] This was a loosing cause from the beginning, prodded along by disingenuous VT politicians(state and federal) who were obviously pandering to ill-informed, liberal ideologues or using scare tactics to support their cause. Informed, unbiased experts around the world understand that all energy for electricity production has a cost-benefit calculation and nuclear is far better than hydro, coal, oil, natural gas, ethanol and many others. Smarten-up Vermont, please.
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The power contract expires on March 21. There is no new contract. There will be jobs at the plant, but no inexpensive power for Vermonters. The order says that demanding power contract concessions in return for permitting is a violation of the Commerce Clause.
VY is a merchant power plant selling its power at market rates to any willing buyer.
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Count me among those who are troubled by Judge Murtha’s ruling, but for different reasons than most of his other detractors. I’m comfortable with the notion that radiological safety is the only possible rationale the Legislature could have been using when it asserted the right to shutter the plant – and that radiological safety is a matter of federal law in light of the Supremacy Clause of the U.S. Constitution and the federal Atomic Energy Act.
I would urge folks to take a close and skeptical look at Judge Murtha’s regrettable ruling on Count III, which concerns the Commerce Clause of the U.S. Constitution. The judge enjoined the Vermont Public Service Board (PSB) from attempting to force Vermont Yankee to sell discounted electricity to Vermont utilities as a condition of renewed state-law authority to operate. According to the Court, the state cannot do that because it is an effort to regulate interstate commerce – with protectionist motives, no less – when only the federal government can limit commerce among the states.
There are at least two potential problems with this ruling. First, in my view, the Judge overlooked the infamous MOU of 2002 – the memorandum of understanding that Entergy signed in which it agreed to come back to the PSB for a new certificate of public good. The whole basis for such a second round of scrutiny, given that the state is preempted from considering radiological safety, is that there has to be something in it for Vermonters if the plant is to continue to operate after March 21, 2012. The only possible benefit to Vermonters is electricity, purchased by their utilities from Vermont Yankee at wholesale, that is cheaper than what the utilities could get elsewhere. When it signed the MOU, in a successful effort to get permission to buy the plant, Entergy agreed to the very thing it has now persuaded Judge Murtha to preclude.
Moreover, what we have here is NOT the sort of economic protectionism that the so-called Dormant Commerce Clause precludes. Vermont is NOT trying to force an in-state generator to favor Vermont customers over customers from outside the state. Rather, Vermont is simply trying to recover for electric customers the economic value to which they were entitled by virtue of the 2002 sale of Vermont Yankee to Entergy. Because Vermont Yankee was originally built by regulated Vermont utilities (with a bit of help from utilities in neighboring states), Vermont electric customers essentially paid for Vermont Yankee through their retail electric bills. Had the utilities kept Vermont Yankee, the ratepayers would still be enjoying the plant’s relatively low-cost electricity. The bargain reflected in the 2002 MOU retains some of that value in Vermont electric customers; the reason for returning to the Public Service Board now is to capture the piece of that value that arises out of the plant’s ability to remain on line after the expiration of its previous federal operating license.
Bottom line: By prevailing on Count III, Entergy is getting to keep a pile of money that really belongs to Vermont electric customers – the people who built Vermont Yankee for Entergy. Leaving radiological safety aside, Attorney General Sorrell should appeal Judge Mutha’s decision to prevent Entergy from pocketing this cash. It’s ours.
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Mr. Fitzhugh, I have a right to say what I think. I think that the nuclear industry has purchased the NRC and possibly this Judge. That is my opinion. These NRC folks know the dangers and ignore them. This judge has acted against the wishes of the the State of Vermont. What ever happened to States rights?
I think corruption has gotten out of hand. Again that is my opinion.
You are entitled to your opinion but I think you’re wrong on this.
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Say all you want about the “reason vs. fear and ignorance” argument. Murtha’s decision clearly hands power concerning moral, ethical, economic, and safety issues to the Feds. Screw states’ rights and autonomy. Big brother will decide for us if something is safe or not, if the people running it are crooks or not, if it has a benevolent economic impact or not, etc. etc., and states can take their right to self-determination and stuff it.
I do feel, however, that accusing Murtha of corruption is a bit premature, unsubstantiated, and reckless.
All in all, it is sad day for Vermont, and a sad day for any state which desires to protect its territory and citizens from corporate bullying.
We can only hope that the PSB will not issue a certificate of public good to such a sketchy business, run by such liars and thieves. But then, has that ever stopped them before?
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I’d like to reiterate that a 20 year relicensing for Vermont Yankee is no guarantee of operation. Entergy nuclear will only operate this facility so long as it is making money for them. As soon as there is a maintenance requirement that exceeds their bottom line, they will close the facility (see Maine Yankee for example). The end result will be the same as closing it down in 2012 – full decommissioning, however it will take place with no planning and foresight for this eventuality. I think the question that Vermont Yankee supporters need to answer is what is their plan for this eventuality? Pay inflated market rates for power? Demand that entergy subsidize their rates for the entire 20 year term? Fortunately, Vermont utilities have already voted with their power contracts to diversify their sources so that they will not be adversely affected by this situation.
I’d also like to address some of the comments on the article above. While Mr. Post asserts that the service life of the facility is 60 years, there is absolutely no evidence to support this. The longest operating commercial nuclear facility in the United States has only been in service for 42 years (Oyster Creek).
I’d also note that Mr. Post applies a double standard to renewables in that he implies that only wind power needs to be supported by backup generation while ignoring the fact that VY has precisely the same constraint. When VY has scrammed unexpectedly in the past did the grid fail or suffer brownouts? The answer is no. This is because there must be sufficient reserve power to back up even a 620MwE generator in the NE-ISO grid as no generator is 100% dispatchable and 100% reliable.
Finally Mr. Post suggests that it will cost $4.4Billion to replace VY with wind power and the VY costs “next to nothing”. While I’m not quite sure why the cost of wind power would be relevant to this article, I’m quite certain it costs a lot more than “next to nothing” to operate a 620 MW nuclear facility even if we remove decommissioning expenses from the equation. If we were to make a true comparison, we could look at the expense of Alvin Vogtle 3&4 AP1000 reactors being constructed in Georgia. Initial cost projections were $14 Billion ($8.8 Billion of which is from federal loan guarantees) although cost overruns already incurred are likely to push this number higher.
Mr. Hewes suggests that VY provides “abundant, affordable power to the state”. I’d suggest that he look at the contracts that CV, GMP and the other state utilities have signed. Their capacity will not be derived from Yankee.
Regardless of any safety issues associated with the facility, one cannot deny that just counting on another 20 years of uninterrupted power from an aging nuclear facility is no plan for the future.
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@ Shumlin: You said: “Entergy has not been a trustworthy partner with the state of Vermont.” How can you, of all people in the state of Vermont, accuse someone of not being “trustworthy”? You should be struck by lightning.
@ Kneeland: You say Vermont needs to “vigorously” appeal this decision. As opposed to what? Just “sort of” appealing it? Appealing it non-vigorously?
@ Kerin: you made a shocking accusation that a well-respected Vermont federal judge (nominated in 1995 by Senator Leahy and appointed by Pres. Clinton) with an impeccable record since 1995 to the present, took money to render this decision. Fitzhugh challenged you to support your allegation of corruption and all you can say is, “that’s my opinion”? Prove your allegation of bribery or stop making a fool of yourself.
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To Donald Kreis,
Entergy-Vermont Yankee worked tirelessly for years to try to ink deals with Vermont utilities for cheap reliable power for Vermonters. Governor Shumlin was more interested in outsourcing Vermont jobs to Canada than he was about what you and I pay for electricity. So if you want to complain about a “pile of money that belongs to Vermont electricity customers”, call the Governor’s Mansion.
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“I do feel, however, that accusing Murtha of corruption is a bit premature, unsubstantiated, and reckless.”
I wonder how much either Entergy or the NRC bribed this judge or otherwise exerted their influence. This is a judge essentially telling a state that a big company can do whatever it wants, that it can keep running a dilapidated power plant in the state even if that state no longer wants it there and there is nothing that the state can do about it except take it and shut up. We all know that the Federal Government, bought and sold at will it seems, does not care much about us and now this is proof.
I am curious what the Public Service Board will do.
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Mr. Carpenter,
Just because you didn’t like Murtha’s decision and then state that “Entergy or the NRC bribed this judge”, says a lot about your character …….. and it isn’t good.
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If money is speech then Entergy has spoken loudly!
What I am doing is speech but because I have little money it like a whisper.
Well nobody is going to shut me up. I’ll continue to speak my mind.
Entergy has lied to the state of Vermont and that is why Vermont fired them. This judge did not take into consideration that Entergy has polluted land and water and lied to the state about many of its flaws.
Either the judge is not taking all the evidence into consideration or he has been bought off. Either way he is wrong in my opinion.
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Let’s see: A corporation signs agreements with the State of Vermont in order to purchase and operate a nuclear power plant for the remainder of its operating license. Then, when the end of that period comes near, the corporation refuses to honor its agreements, and hires lawyers to conduct surveillance on Vermont legislators as the discuss how to fight the corporation in court.
What’s wrong with this scenario? How do legislators fail to succeed on the merits, that is, due to the corporation’s refusal to honor its agreements?
How does the corporation win, not by fighting the arguments presented by the legislators, but by spying on legislators and charging them with “wrong” thoughts and feelings, aka motivation?
Given the absurdity of the federal government’s claiming the right to determine whether or not a state may protect its citizens from nuclear poisoning, we are looking at dysfunction—writ large. The corporation, as paterfamilias, gets to cheat and lie, duck out of agreements, and to seal its power by demanding that should anyone mention feeling frightened, it’s game over: You lose the fight for your life if you should have the temerity to say you fear for your life!
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Mr. Hudson, That was not an accusation, it was wondering out loud. The judge either did not pay attention to the states actions or maybe he ignored them for profit. I have no idea if he profited but if not he has hurt states rights enormously. Either way the damage is done, and Entergy profits considerably. ” Money is speech ” Entergy has screamed loudly. My speach is but a whisper because I have little money.
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We all know that VY is a pig sty and needs to be cleaned up…it’s just a matter of who will pay for it and when. How many more tons of atomic waste will we have to guard and find a place to store?
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Mr. Kerin, I appreciate the evolution of your comments expressed in this thread that there may have been another reason for the judge’s decision other than “maybe he ignored them for profit.”
I don’t have much time to read these posts but believe a robust debate (which is what I see here and in other Vt Digger comments) is generally healthy to our little State. I also know that sometimes one can express thoughts here that, upon sober reflection, one might regret later. That said, it behooves all us to be careful because accusations of bribery without proof cross the line and go beyond robust debate, IMHO.
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First, regarding the recent ruling:Why has Murtha been allowed to look beyond the written text of the new laws and interpret the motivations of the legislators? Standing alone, the new laws do not address radiological safety, instead reliability. It does not seem appropriate for a judge interpret how or why legislators came to make a decision, and then rule on whether his interpretation of why they made the decision was within the state’s regulatory boundaries.
Second, regarding nuclear as a safe, clean energy source for VT: Is nuclear still a clean, carbon-free source of energy when considering its whole life cycle? Where does the Uranium used at VY come from? What does the extraction process do to the land, who lives on that land? Where will the radioactive waste be stored? Who lives on that land?
Our perception of cleanliness, cost, reliability, and safety of an energy source, especially nuclear must stretch over space and time in order to be accurate.
Lastly, if you would like to get off-line and talk in person about VY and become more involved with the next steps with the PSB and potential State appeal, there will be a rally today outside of the Statehouse at 4PM. The rallies will continue weekly on Wednesdays. The next rally will be Wed, Feb 1, at 4 pm.
http://sagealliance.net/events/rally-1-23-2012
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Since the legislators tried to go around the 2002 memorandum and made a STUPID law prohibiting the PSB from making a decision re “certificate of public good” one must wonder if this entire thing was a setup from the beginning.
Shumlin and other legislators got to look “green” to the public, in response to nearly 100 towns issuing “close VY” town meeting resolutions. But they actually undermined the entire “anti VY” movement and shot themselves in the foot by trying to eliminate the then-Douglas-controlled PSB from the equation. Sabotage from the beginning, or just plain idiocy?
These are the same legislators (including Shumlin) who passed on the chance VT had to buy 580 MW of hydro-power, which would have completely replaced VY while providing CHEAPER POWER for VERMONT than VT does, for less than $500 million (compared to the $10 BILLION cost of a new nuke plant the size of VY).
Now those damns on the CT and Deerfield river are not even connected to the VT grid, as the foreign company Trans Canada ships ALL of that power to higher-priced markets south of Vermont.
Am I the only one who smells a whole cage full of RATS here?
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Just as soon as Entergy can they will probably shut down this obsolete plant and stick us with the bill for cleaning it up. That is what this judge allowed them to do.
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Mr. Hudson,
http://www.msnbc.msn.com/id/44369172/ns/us_news-environment/?GT1=43001#.Tx8up1xrM0J
http://healthvermont.gov/enviro/rad/yankee/tritium.aspx
http://enformable.com/2011/12/nrc-finds-entergy-safety-commitment-track-record-lacking-severely/
http://enformable.com/2012/01/former-vermont-governor-rips-nrc-and-vermont-yankee-safety-record/
There are several more if you try looking.
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Beth,
It is the NRC, not the state, that issues a license to Entergy to operate Vermont Yankee.
The state issues a certificate of public good, CPG, an entirely different document that usually is pro forma for most projects that the PSB deals with.
In the case of the environmentally-destructive, health-damaging Lowell Mountain Industrial Wind Turbine Facility, pro forma hearings were held (the approval was a foregone conclusion) before issuing the CPG.