Entergy wants injunction for Public Service Board “pocket veto”

Vermont Yankee on the banks of the Connecticut River

In a filing with the Vermont District Court in Brattleboro, Entergy Corp. appealed to Judge J. Garvan Murtha to ensure the state does not shut down the Vermont Yankee Nuclear Power Plant on March 21.

On Jan. 19, the federal judge ruled in favor of Entergy in a case it filed against the State of Vermont challenging laws that required legislative approval for the plant to continue operating when its license expires in March.

While Judge Murtha deemed part of Act 74, which required legislative approval for the company to store spent nuclear fuel beyond its license expiration date, pre-empted by federal law, he left standing a provision of that law that requires the company to obtain a certificate of public good by March 21 in order to operate beyond that date.

Another provision of Vermont law allows a power plant to continue operating past its license expiration date until the Public Service Board makes a final decision — creating some conflict and confusion.

Entergy claims the law requiring it to get a certificate of public good by March 21 is a “pocket veto” which would allow the state to shut the plant down when it produces more spent fuel after that date. The company wants Judge Murtha to issue an injunction to make sure this doesn’t happen.

This disparity in state law never came up in the three-day trial last fall. The issue arose when the Public Service Board sent detailed questions to all the parties in the proceeding.

The board’s questions ask bluntly: “Does Entergy VY plan to operate past March 21, 2012, if the Board has not yet issued a CPG? If so, what does Entergy VY plan to do with spent
fuel generated as a result of such operation? … Is such operation barred by 10 V.S.A. § 6522(c)(5)?”

A statement issued by Entergy Tuesday saying it was looking for clarity from the federal court.

“Based on the VPSB’s questions, we made a number of filings asking the Court to provide clarity for all parties regarding certain aspects of Judge Murtha’s decision and its impact on the continued operation of Vermont Yankee while the VPSB considers our pending application for a Certificate of Public Good,” the statement reads.

In the trial, Entergy asked the federal court to grant an injunction that would prevent the state from doing anything that would shut down the plant pending a decision by a court or the Public Service Board. Murtha denied that request, but Entergy argues the other law that would allow the plant to keep operating pending a decision appears to make it unnecessary.

The state appealed Judge Murtha’s decision to the Second Circuit Court of Appeals Feb. 18, and the Public Service Board has scheduled a status conference for its docket for March 9.

While the idea of the state shuttering Vermont Yankee in a few weeks seems unlikely, the “pocket veto” issue caught some by surprise.

Patrick Parenteau, a law professor at Vermont Law School who has been following the case, said he didn’t expect Entergy to appeal since the issue never really came up at the trial or in papers filed with the district court.

“Entergy is saying ‘the board is fixing to shut us down on March 21,’” Parenteau said.

The law that could theoretically shut the plant down next month reads: “Compliance with the provisions of this subchapter shall not confer any expectation or entitlement to continued operation of Vermont Yankee following the expiration of its current operating license on March 21, 2012.”

The same subchapter of the law includes a provision Judge Murtha struck down that required legislative approval to store spent nuclear fuel produced after that date. While the judge’s decision left the door open for the Public Service Board to approve a certificate of public good for the plant, it also arguably leaves open the possibility that the state could issue the “pocket veto” by not acting by March 21.

Entergy argues that while the Legislature’s ability to shut down the plant was pre-empted by federal law so too is the Public Service Board’s authority.

Parenteau said Entergy makes good arguments, but the motion may be premature.

“The board is basically saying ‘what do we do?’ The court didn’t strike down this provision,” Parenteau said. “You could read into that that the Public Service Board is fixing to say ‘you have to shut down.’ … My response is I think they’re jumping the gun.”

Sandra Levine, senior attorney with the Conservation Law Foundation in Vermont, said the motion is trying to get around the Vermont law prohibiting Vermont Yankee from storing spent nuclear fuel after March 21 without the state’s permission. The environmental group filed a brief as a friend of the court in support of the state in district court. Levine said it plans to do the same in the appeals court. Levine cited the filing as Entergy’s way of getting out of a commitment it made to the state.

“This is part of Entergy’s continuing string of broken promises,” Levine said. “It goes beyond the court’s order and is trying to force Vermont to store additional spent fuel.”

Entergy also filed a motion giving notice to the district court that it is appealing Judge Murtha’s decision to the Second Circuit.

In addition to the flurry of court and administrative filings over the past two weeks, the Shumlin administration has proposed a 417 percent increase on the fee the nuclear plant must pay annually to discharge heated water into the Connecticut River. Gov. Peter Shumlin said the increase, which will make the company’s bill $543,000 annually, is justified since smaller users pay a higher rate on a per-gallon basis.

Alan Panebaker

Comments

  1. Bob Stannard :

    By now it should be clear to each and every Vermonter that Entergy had planned to break every committment it made to the State of Vermont from the day it purchased the plant.

    Entergy’s goal was to buy the plant for very little money; $180 mil, and run it forever. In ’04 they asked to uprate the plant. Vermont did not have to agree to do so, but accommodated Entergy in exchange for oversight. Entergy agreed knowing full well they would never hold up their end of the bargain.

  2. Mike Kerin :

    When I got my CPG I had to get all my neighbors approval before it was issued. If any had a problem with my solar array I could not proceed. The same should be true for Entergy.

    They have gotten off easy on discharging hot water in the river for many years. The fee should be much higher for polluting.

  3. Alex Barnham :

    What an expensive, messy, nasty business this chess match becomes. Using the legal system to impoverish the state of Vermont and demanding the ability to pollute. I wonder how many Vermonters know this.

  4. Howard Shaffer :

    When Vermont Yankee operates on March 20, there will be no more “spent fuel” than on the 19th, or any other day since the last refueling, or until the next one. And it won’t be “stored” it will be in the reactor in use, making power.

    This is true if “spent fuel” refers to fuel assemblies – the bundles of fuel rods that are handled as units.

    If “spent fuel” and “stored” mean something else, there may be a different answer.

  5. Howard Shaffer :

    Is it being forgotten that Vermont wanted the utilities to sell VY? If Vermont wanted VY shut down, why didn’t the Legislature order the Public Service Board to make the utilities shut it down before 2002? Is it because the rate payers would have had to pay a lot to the utility shareholders, and make up any additional decommissioning costs?

    Far better to pretend to make an honest deal with a merchant generator, in business to provide a public service and make a fair profit (in the same vein as the wind generators, for example) then turn the winter marchers loose to stampeded the political process. All aided by an insider at the plant leaking information, as Mr. Shadis boasts.

  6. Jon Wharf :

    The amount of nuclear fuel requiring storage doesn’t actually change until the next refueling, so the PSB’s question is misguided (or easily answered). However given the legislature’s hostility towards Vermont Yankee I can understand Entergy’s desire for legal back-up to prevent any new foolishness.

  7. Margo Howland :

    This case is getting curiouser and curiouser!

  8. John Greenberg :

    Howard Shaffer and Jon Wharf’s comments about spent fuel ignore the text of the law, which quite clearly refers NOT to the AMOUNT of spent fuel stored, but to WHEN IT WAS GENERATED. Specifically, the law reads: “Any certificate of public good issued by the board shall limit the cumulative total amount of spent fuel stored at Vermont Yankee to the amount DERIVED FROM THE OPERATION OF THE FACILITY UP TO, BUT NOT BEYOND, MARCH 21, 2012, the end of the current operating license.” Section 6522 (c) (2) This is not the first time that VY supporters have attempted to attack Vermont’s laws without actually bothering to read them. Indeed, that’s been the pattern of this whole case to date. It’s well past time to break the pattern.

    For the second time (at least), Mr. Shaffer raises this question: “If Vermont wanted VY shut down, why didn’t the Legislature order the Public Service Board to make the utilities shut it down before 2002?” His question is based on a totally false assumption, which again stands behind much of the reasoning that has been brought to bear in this case.

    The assumption is that in 2002, or really at ANY time prior to late fall 2009, the Vermont legislature did, in fact, want to shut VY down. For those who have followed these issues closely, it is perfectly clear that the assumption is, as a simple matter of fact, false.

    It was false in 2002, when the PSB decided that it was in the “public good” for the utilities to sell the plant rather than to close it. The Board confronted the situation explicitly and directly. There was no legislative intervention in the matter.

    In 2005, when Entergy realized that a 1977 law required them to get legislative approval to store their waste in dry casks, the legislature chose to pass Act 74, RATHER THAN DOING NOTHING. Had the legislature failed to act, that would have had the effect of forcing the plant to shut down BEFORE 2012. Those who argue that the legislature’s “intent” in 2005 was to close the plant have never provided ANY explanation as to why the legislature would choose to pass a law which, when read as written, does NOT have that effect, rather than passing no law, which WOULD have that effect. The same applies to passage of Act 160 a year later.

    Those having evidence that a MAJORITY of the Vermont legislature wanted to shut down Vermont Yankee at ANY time prior to late fall 2009 should present it. As someone who spoke to virtually every legislator during that period of time, I believe that what finally turned legislators against the plant was Entergy’s decision not to improve its 6.1 cents contract offer presented to the PSB in December 2009 along with the decision by CVPS and GMP not to accept that offer. It is also worth recalling that, at the time, the Enexus deal was pending (indeed, the offer I just mentioned was predicated on the Enexus deal going through), and the spinoff was incredibly unpopular among legislators, including a number who otherwise supported VY. Senator Illuzzi wrote an op-ed piece that fall saying just that, but he was certainly not alone in his concerns.

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