The Vermont Supreme Court on Monday dismissed the New England Coalition’s request to shut down the Vermont Yankee nuclear power plant.
The anti-nuclear coalition took advantage of a rarely used statute in early December, in its petition asking the Supreme Court to enforce a Public Service Board (PSB) order against Vermont Yankee operator Entergy Corp.
The PSB order that prompted the coalition’s complaint was a denial of 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 on the site generated after March 21, 2012, when state permits for Vermont Yankee expired. The sale 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 attempted to use Chapter 15 of Title 30, which allows a party to complain to the Vermont Supreme Court about noncompliance.
The coalition was a party in the board’s review of Entergy’s permit application in Public Service Board Docket 6545, which included the 2002 order to approve Entergy’s initial sale order and certificate of public good.
Since Entergy has appealed board orders to the Vermont Supreme Court and since Entergy is currently participating in the state’s application process for a new certificate of public good, the Supreme Court justices would not rule on the matter under the coalition’s complaint.
“NEC fails to demonstrate …that it exhausted its administrative remedies and that it has no adequate legal remedy,” they wrote in their decision.“NEC has not requested, nor has the Board issued, an order directing Entergy to cease operating Vermont Yankee on the grounds advanced by NEC here.”
The justices also noted that the board’s authority to enforce the sale order is not yet “established.” The state lost a federal court case in 2012, which found the state was federally preempted from shutting the plant down based on Vermont’s existing legislation. The state is currently appealing that decision.
Furthermore, the justices put off making a decision on the sale order because the court will consider the issue in an appeal that Entergy filed against the Public Service Board for moving forward with its permitting process under a new docket.
Entergy’s appeal to the Supreme Court came after the coalition filed its complaint.
Jared Margolis, the coalition’s lead attorney in the case, said that if Entergy had filed its appeal first, the coalition might have not taken the legal route it has. He said that while the court could have considered the order under the coalition’s docket, it chose not to for procedural reasons.
“The substantive issue that we brought before the Supreme Court has not been determined to be invalid,” he said. “The Supreme Court didn’t say, ‘Wwe don’t agree with the arguments of NEC.’ They said, ‘We’re going to take this up in Entergy’s appeal of docket 7440.’”