Assistant Attorney General Bridget Asay and her legal team asserted the state of Vermont’s authority over the Vermont Yankee nuclear power plant on Tuesday in U.S. District Court.
Entergy Corp., which owns the plant, filed a lawsuit against the state in April because it wants the Vermont Public Service board to issue a permit by June 11 for the construction of a backup diesel generator or it wants the federal government to intervene.
Entergy contended that the state indicated it would not issue a permit in a timely fashion. Since Entergy must meet federal guidelines, it argues that if the state does not issue the permit by June 11, the state’s power is federally preempted.
Asay argued in front of federal Judge Christina Reiss that Entergy’s contention is based on speculation, as the hearing was June 4 and the state could very well issue the permit by the end of the day on June 10. Furthermore, she added, the quasi-judicial board’s hearing officer recommended that the board provide a permit, known as a certificate of public good (CPG), for the facility, and that Entergy’s proposed schedule is arbitrary.
“The likely outcome is the board will approve the CPG for the generator and this case would be moot,” Asay said in court, adding that the state’s authority to issue such a permit is not preempted under federal law, as Entergy’s attorneys have stated.
“The approval the state will give does not mean it does not have authority,” she said.
The nuclear plant must have a backup source of power to comply with federal regulations, and its contract with Transcanada for that power is set to expire on Sept. 1. To construct the generator by September, Entergy representatives say it needs to begin by June 11. When Entergy filed the lawsuit, the hearing officer, Lars Bang-Jensen, had not yet issued a recommendation. Bang-Jensen also questioned whether the plant should be given the permit, considering that the plant is not in compliance with existing orders.
Entergy spokesman Jim Sinclair said that in light of such ambiguity, his company was forced to take legal action.
“Seven months ago, in September of last year, we filed an application, and it’s taken this long to get this far,” he said. “With the uncertainty of when and if the Public Service Board will rule, we were put in the very difficult position of having to explore this as an alternative.”
Cheryl Hanna, a constitutional law professor at Vermont Law School, outlined the three different directions this case could move in, and they all depend on the Public Service Board.
The board could grant the diesel generator a certificate of public good without any contingencies on past or pending orders and permits, which is what Bang-Jensen proposed to the board. This decision would drop the federal case.
“They could grant the certificate of public good with the condition that Entergy is in compliance with all of its other certificates of public good and that, of course, would create conflict within the parties about what that meant,” Hanna said outside the courtroom.
The third option for the board is that it could deny Entergy’s application for the permit, which would raise the question of federal preemption.
Sanford Weisburst — one of Entergy’s attorneys from the New York firm Quinn, Emanuel, Urquhart and Sullivan, LLP — pointed to federal preemption because the back-up generator serves a safety purpose, and safety issues fall under the purview of the Nuclear Regulatory Commission via the Congressional Atomic Energy Act.
“It’s in the heartland of preemption because it’s safety motivated,” he told Judge Reiss.
Aside from opening comments, the morning session on Tuesday was consumed by the state cross-examining George Thomas, Vermont Yankee’s senior project manager, about how various construction project schedules have shifted. Hanna said this was not the main issue at hand.
“The factual question in this case, about whether Entergy needs 82 days or 63 days, is really minor and a lot of legal wrangling to really very little good,” she said. “The bigger legal question in this case is whether or not the state of Vermont could withhold a certificate of public good because it’s federally preempted from doing so and that really comes down to whether or not the federal regulation at issue here is fundamentally a safety issue.”
Hanna expects that Reiss will wait for the Public Service Board’s decision before making one of her own.
On Wednesday, the Public Service Board is taking a single oral argument on the permit application from the anti-nuclear New England Coalition, which opposes the permit. The board is then expected to issue a decision soon thereafter.
In addition to this federal suit, Entergy and the state of Vermont are currently litigating in federal appeals court over the Legislature’s authority to shut the plant down, over a generation tax passed last legislative session, in the Vermont Supreme Court, and in front of the Public Service Board to provide a new certificate of public good for the plant to operate for another 20 years.
The case in front of the federal court of appeals bears far more weight on the future of the plant’s ability to operate and a state’s power over a nuclear facility, Hanna pointed out.
“The fundamental question is what is a relationship between a state and a federally regulated, currently operating nuclear facility, and there is no clear answer to that question,” she said.