Editor’s note: Carl Etnier contributed to this story.
Entergy Corp. is seeking to keep the state of Vermont from forcing the company to shut down Vermont Yankee.
The Louisiana-based corporation wants to continue operating the nuclear power plant in Vernon beyond its scheduled shutdown date of March 21, 2012 — while it sues the state.
The request for an injunction, which was filed Friday, would prevent the state from enforcing a 2006 law that prohibits Entergy from operating the plant beyond the 2012 deadline without a state license.
The legal maneuver was expected. Vermont Attorney General William Sorrell told reporters last Monday he thought Entergy would file a request for an injunction on the heels of the company’s announcement that it would sue the state of Vermont.
Last week Entergy filed a lawsuit alleging that Vermont doesn’t have the authority to supersede the Nuclear Regulatory Commission’s decision last month to allow the plant to operate past the deadline next year. The suit is based on an assumption of federal pre-emption over state law under the Atomic Energy Act, the Federal Power Act Preemption and the Commerce Clause of the U.S. Constitution.
In 2006, Vermont was the first and only state in the country to enact a law making the owner of a nuclear power plant subject to legislative authority. Elsewhere, the Nuclear Regulatory Commission is the only government agency with the authority to grant operating licenses.
Richard Smith, president of Entergy Wholesale Commodities, told reporters last week that the state of Vermont “changed the rules on us.” The 2006 law, he said, “took control of plant’s future away from the Public Service Board and instead it placed Vermont Yankee’s fate in the hands of political decisionmakers, namely the state General Assembly and the governor who could deprive (Entergy) from operating the plant for unsupported, arbitrary reasons. This is not what we signed up for in 2002.”
Under Vermont law, the plant must close if Entergy cannot obtain a certificate of public good from the Public Service Board to continue operation. That certificate cannot be issued without the permission of the Legislature. In a 26 to 4 vote last year, the Vermont State Senate voted to deny Entergy the go-ahead for a license extension to operate Vermont Yankee through 2032.
Sorrell said he anticipates a protracted court battle. The request for an injunction, filed in U.S. District Court in Burlington by Gravel and Shea, a local law firm, seeks a court order that would prohibit the state from “taking any action that would force the Vermont Yankee Station to cease operations.” The lawyers argue that Vermont’s plan to shut down the facility would inflict “irreparable harm” on Entergy.
Several of the harms cited by the attorneys include the attrition of highly trained employees and losses of fuel. They also argue that the state law would force Entergy to file a certificate of decommissioning with the Nuclear Regulatory Commission “that is likely irreversible, costing Plaintiffs twenty years’ worth of revenues.” Read the request for injunction.
The filing includes more than 2,320 pages of documents, according to commonsnews.org, “ranging from news reports about the plant to employee exit interviews that list the uncertainty of the plant’s future as a reason for their departure.”
State officials must not destroy Yankee-related correspondence
In the wake of the injunction Entergy filed with the U.S. District Court, the Vermont Attorney General’s office has issued a “litigation hold” on Vermont legislators and state officials.
Senate President Pro Tem John Campbell made the announcement to the full Senate on Friday as a statement from the Attorney General’s office was passed around to Senators. Campbell warned lawmakers not to destroy any paper or email correspondence dating from 2001 that makes reference to Vermont Yankee.
They were also instructed to keep the letter from Assistant Attorney General Kyle Landis-Marinello under wraps. “It is standard procedure when the state is sued for our office to send out a litigation hold letter to ensure that all relevant documents are preserved,” Landis-Marinello said.
Rep. Tony Klein, chair of the House Natural Resources and Energy Committee, has received many documents related to Entergy over the years.
“I’ve never deleted anything, anyway,” Klein said. “And I don’t intend to. As a legislator of long standing and chair of this committee, I have nothing to hide. Whatever I have ever written is fair game for anybody that wants it.”
Klein speculates that Entergy’s move is part of a strategy to prolong the litigation process. “I think that part and parcel of their purpose is to drag it out. It’s fairly obvious from their statements that they would have filed suit on this for anything other than a yes (a green light for continued operation after 2012) no matter what the process was.”
Entergy Corporation would not comment on the hold.
