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.