Anti-nuclear group petitions the Vermont Supreme Court to shut down Vermont Yankee

Entergy's legal team, left, and New England Coalition attorneys appear before the Vermont Supreme Court. Photo by Andrew Stein

Entergy’s legal team, left, and New England Coalition attorneys appear before the Vermont Supreme Court. Photo by Andrew Stein

Vermont Yankee’s continued operation was the focus of yet another court hearing this week. On Wednesday, the Brattleboro-based New England Coalition petitioned the Vermont Supreme Court to shut down the nuclear power plant. The anti-nuclear group argued that Entergy Corp. has operated the plant illegally, i.e. without a license, since March, and under an arcane legal precedent the coalition says the Vermont Supreme Court can order an injunction to shut down the plant.

Entergy questioned whether the state’s highest court should even consider the coalition’s request to prohibit the continued operation of the Vermont Yankee Nuclear Power Plant in Vernon. But the arguments went beyond Entergy’s motion to dismiss the case. The Louisiana-based company also asked the Supreme Court to clarify that it is not in violation of Public Service Board orders.

Lawmakers denied Entergy permission to pursue a license extension in 2010 and Entergy sued the state shortly thereafter. After it won a U.S. District Court battle over the matter in January last year, Entergy began seeking a license or a certificate of public good from the Vermont Public Service Board. The state appealed the ruling and argued its case in the U.S. Court of Appeals on Monday.

The case now before the Vermont Supreme Court stems, in large part, from a November order issued by the Public Service Board, denying Entergy’s motion to amend its previous sale order, dry fuel storage order and certificate of public good.

The dry fuel storage order banned the plant from storing spent fuel generated on site after March 21, when the state’s original permits for Vermont Yankee expired. The sales order prohibited the continued operation of the plant beyond that date without the board’s approval.

Since Entergy failed to follow these orders, and the board won’t amend them, the New England Coalition took advantage of a rarely used statute, Chapter 15 of Title 30, which allows a party to complain to the Vermont Supreme Court about noncompliance: “A party to an order or decree of the public service board or the board itself, or both, may complain to the supreme court for relief against any disobedience of or noncompliance with such order or decree.”

The coalition argues that it was a party in the board’s review of Entergy’s permit application in Public Service Board Docket 6545.

Kathleen Sullivan is a seasoned appellate attorney, who represented Entergy this past week in the company’s U.S. Court of Appeals dispute with the state of Vermont. On Wednesday, she appeared in front of the Supreme Court to argue that Title 3 Section 814(b) of the Vermont Statutes allows the plant to continue operating without violating board orders.

Section 814 establishes that a licensee submitting an application for the renewal of a license, can pursue that activity under a current license until the given governmental body determines the outcome of that application.

Since Entergy submitted its application to continue operating before its initial licenses expired on March 21, and since the Public Service Board has not yet approved or denied a new permit, Sullivan argues that under Section 814 Vermont Yankee has not violated any board orders.

“We want you to dismiss the complaint for failure to state a claim on the merits because we think you should rule that 814(b) does apply … and does allow us to continue operating Vermont Yankee past March 21, 2012,” she told the Supreme Court.

Furthermore, she asked the court to rule that the plant is not violating Public Service Board orders.

“Every day that the PSB tells Entergy that it’s in violation of the board’s order that’s a negative for the workers of the plant and the continued operation of the plant,” she said. “We think if you can clarify that we’re not in violation of any board order, because of 814(b), that is a very material gain.”

Vermont attorney Brice Simon countered by arguing that Section 814(b) does not apply to the sales order because it is not a license.

The justices asked why the coalition wanted the Vermont Supreme Court to rule on the matter and not the Public Service Board.

Simon said he didn’t think the board would rule because of the decision made a year ago by federal Judge J. Garvan Murtha against the board and other Vermont officials, which effectively allows Vermont Yankee to continue operating.

“I don’t think that the Public Service Board at this time would issue or could issue the order that we’re asking for, in part, because there is still confusion about the U.S. District Court’s injunction against the Public Service Board,” he said.

Leading up to Wednesday’s oral arguments, Murtha didn’t accede to Entergy’s request to block the coalition from seeking a court order to close Vermont Yankee. Entergy argued that the coalition was within the reach of the federal court because it is attempting to enforce state law.

Summing up the coalition’s arguments on Wednesday, Simon rearticulated the anti-nuclear group’s stance.

“We are properly here under Title 30 Section 15,” he said. “We have multiple orders of the Public Service Board to enforce … and we ask this court to exercise its authority to either enjoin Entergy from continued operation or to give us other relief that the court deems reasonable and just.”

Andrew Stein


  1. gary sachs :

    I hold that the Nuclear Regulatory Commission approval of the Entergy Vermont Yankee reactor license to continue operating another 20 years led to Entergy’s decision one month later, in April 2011, to sue VT using the pre-emption argument.

  2. Jim Barrett :

    This anti nuclear group is just that, anti nuclear and nothing more. They as well as VPIRG and CLF as well as others have an agenda to stall, obstruct the commerce of this state using any means available to reach their goal. Stopping everything and anything from happening is a little fashionable in this state and these people take advantage of that. In addition, the people of this state don’t have the time or millions to spend to try and force their opinions on others.

  3. Bob Stannard :

    Mr. Barrett’s view of those who oppose this plant is inaccurate. There are many Vermonters who feel that they should have a say in what any corporation does within the borders of our state.

    If left up to Entergy they would exploit every dollar from the plant and leave Vermont with a radioactive carcus and dangerous spent fuel left in a vulnerable pool seven stories in the air. And the NRC would say this is perfectly fine with them.

    If anything, Vermont will owe thanks to those who stood up to this bankrupt (morally and financially) corporation and opted instead to protect our state’s rights.

  4. David Klein :

    Nuclear waste, nuclear waste, nuclear waste, nuclear waste, nuclear waste, nuclear waste, nuclear waste, nuclear waste.

    “The dry fuel storage order banned the plant from storing spent fuel generated on site after March 21.”

    The State has the right to regulate garbage dumps

    The one undeniable fact that pro-nuclear people can’t argue away is that there is no where to put nuclear waste. The State has clearly stated it does not want anymore waste stored on the banks of the Connecticut River.

    Anyways, it’s all a shell game for Entergy. They don’t care about VT Yankee, what they are worried about is that closing VT Yankee could lead to closing Indian Point Nuclear Power Plant near NYC.

  5. Sally Shaw :

    States Rights States Rights States Rights States Rights. Not to mention the fact that the PSB is dealing not only with a scoff-law corporation with a history of violating agreements (fenceline radiation standards, dry cask monitoring, etc. etc.) but an arrogant bunch of paid liars who lied to the PSB under oath and to the Legislature, who should have been prosecuted for perjury and thrown in jail, not given cushy jobs elsewhere for a while and then brought back to Vernon with a new job description (and probably with a raise). Apologists for this slippery multinational corporation with the ethics of slime mold (sorry, slime mold) hiding behind the dirty skirts of the NRC are probably in favor of corporate welfare, too. After all, they trickle down on us.

  6. Hattie Nestel :

    It would seem to me that a hot dog stand was not in compliance about what to do with their waste or their run-off cooking grease would be shut down and probably fined.
    What makes this nuclear facility that endangers all of New England with every radioactive belch that it emits around the clock above the law?
    It couldn’t be all those donations to everyone who puts their hand out, could it? Are we really getting sold out for a bunch of free Christmas lights or playground equipment?

  7. This is a well-researched article, and I hate to point out any problems. However, Brice Simon is identified as “Vermont attorney Brice Simon.” Brice may well live in Vermont; I don’t know. But the words are ambiguous. I want to point out that Brice is not representing the state of Vermont. He is the attorney for the New England Coalition to Prevent Nuclear Pollution,

  8. Apologies to Attorney Brice Simon! I did not mean to use his name so casually. I meant to refer to him as “Simon” not “Brice”. I am sorry.

  9. Meredith,

    Nuclear energy is far less expensive than ridge line IWT energy which seems to be in vogue these days.

    Trans-Elect and Atlantic Grid Development are the Atlantic Wind Connection, AWC, project developers.

    When completed, the AWC will be able to carry as much as 7,000 MW of offshore wind energy to consumers along the US East Coast.

    With a project plan that envisages construction extending from 2016 – 2026, the developers intend to build out the offshore transmission backbone in five phases at a total expected cost of $6.311 billion. The capital cost of the IWTs would be 7,000 MW x $4.2 million/MW = $24.53 billion, for a total of $35.7 billion.

    This does not include any onshore grid modifications and the extra OCGT and CCGT capacity required for balancing the wind energy, which would be 3 – 5 billion dollars.

    Energy production would be 7,000 MW x 8,760 hr/yr x CF 0.40 = 24.53 TWh/yr.

    For comparison: The capital cost of 7,000 MW of nuclear plants (7 standard 1,000 MW plants) would be about $28 billion and the energy production of would be 7,000 MW x 8,760 hr/yr x CF 0.90 = 55.20 TWh/yr; more than twice the production at much less capital cost. They could all be built in about 10 years, thereby reducing CO2 much sooner than the IWTs, which would take 20 years.

    Completing the project would enable transmission of renewable offshore wind power to consumers in NY, Pennsylvania, NJ, Delaware, Maryland, Washington D.C. and Virginia.

    According to a project analysis performed by IHS Global Insight, the AWC transmission backbone would be able to deliver:

    3,417 MW of to NJ (44%);
    1,015 MW to Delaware (13%);
    1,013 MW to Maryland (13%)
    2.297 MW to Virginia (30%)

    The total power to customers = 7000 MW – about 5% losses = 6,650 MW
    Load diversity factor = 6,650 MW/(3,417 + 1,015 + 1,013 + 2,297) MW = 0.86

    Based on the above, it appears the energy cost of the IWTs will be at least 20 c/kWh and of the nuclear plants about 10 c/kWh, per EIA/US-DOE. If IWT useful service life is 20 years, instead of the
    proponent-claimed 25 years, these costs become 25 c/kWh and 12.5 c/kWh, respectively.

    • John Greenberg :

      “Nuclear energy is far less expensive than ridge line IWT energy which seems to be in vogue these days.”

      Tell that to the folks in Fukushima. Or even TEPCO shareholders, for that matter.

    • Willem, thank you for the thoughtful note!

      Minor question…I don’t think the nuclear cost number would go up from 10 to 12 cents, just because the wind turbines don’t last as long.

    • Kai Mikkel Forlie :

      “Nuclear energy is far less expensive than ridge line IWT energy which seems to be in vogue these days.”

      Contrary to this remarkable statement, nuclear power is in fact the most expensive means of generating electricity ever put into practice. When one factors in the total cost – including mining and enriching uranium, associated transportation costs, liability insurance, planning, design and construction of reactors, maintaining reactors, decommissioning reactors and dealing with the 100,000 lifespan of the highly toxic material left over (and the associated carbon footprint of all of the above) – wind energy is FAR cheaper than nuclear energy. Also wind energy isn’t toxic and even if it was, it wouldn’t remain so essentially forever.

    • Rob Simoneau :

      This accounting technique is, and has been for some time, out of date. Simple operational cost accounting never really worked due to the fact that it does not take all costs into consideration. The appropriate cost analysis per TWh/yr can never really be known since the storage of nuclear waste has yet to be fully analysed and quantified. The cost of decommissioning are also escalating. The most appropriate cost analysis life-cycle costing or total cost of ownership (throughput accounting). The other costs that are not taken into account are deaths and years of life lost (human and animal cancer) as well as degradation to the environment.

      Another point to consider is that alternative energy system are becoming less expensive due to technological improvements and scaled production while oil, coal, nuclear and natural gas are all going up due to inflationary pressures. Germany is shutting down all it reactors and now is in the process of making oil, coal, and natural gas their “alternative energy” sources. Yes that is correct … wind, solar, wave and geothermal will be their primary sources of energy.

      Vermont Yankee must be shut down now it is the most dangerous nuclear power plant now in operation in the world today. Plymouth and Indian Point are also very dangerous.



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