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

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