Vermont files opposition to Entergy request

Jessica M. Karmasek May 25, 2011, 12:00pm

BRATTLEBORO, Vt. (Legal Newsline) - Vermont Attorney General Willam Sorrell says the State has filed opposition papers to Entergy Corp.'s motion for a preliminary injunction.

Entergy, according to its website, is an integrated energy company engaged primarily in electric power production and retail distribution operations. It owns and operates power plants with approximately 30,000 megawatts of electric generating capacity, and is the second-largest nuclear generator in the United States.

The company filed a lawsuit against the State for its role in deciding whether the company's Vermont Yankee nuclear power plant can operate after its license expires in March 2012.

In Vermont, both houses of the state Legislature and the governor must approve nuclear licenses.

The State, in its 68-page memorandum filed Monday in U.S. District Court for the District of Vermont, says Entergy Nuclear Vermont Yankee LLC bought Vermont Yankee in 2002 "knowing" the plant was scheduled to close in 2012.

"ENVY agreed then that State approval of the sale, including the necessary Certificate of Public Good, would 'authorize operation... only until March 21, 2012, and thereafter will authorize ENVY and (Entergy Nuclear Operations Inc.) only to decommission' the plant," the Attorney General's Office wrote.

"Since 2005, ENVY has known that it needed approval from both the Vermont Public Service Board and the Vermont Legislature to operate after March 21, 2012. Yet now, as March 2012 approaches, ENVY claims an urgent need for this Court to enjoin all State authority over whether the plant will continue to operate beyond March 21, 2012 -- authority ENVY has agreed to all along."

Vermont says the company has "consistently recognized and agreed to" State regulatory authority -- and "specifically acknowledged" that it needed State approval to keep operating after March 21, 2012.

"The Legislature's role in that decision also comes as no surprise; ENVY sought legislative approval for the dry-cask storage that it needed to operate until 2012, and the statute that approved additional storage, Act 74, required further legislative approval for storage of spent fuel generated after March 21, 2012," the Attorney General's Office wrote.

"ENVY made binding commitments during these State proceedings to not assert the preemption claims that are pressed in this suit. The Court should not grant equitable relief that would allow ENVY to avoid, at this late date, its agreements with the State of Vermont."

Vermont argues that, under these circumstances, Entergy cannot make the "clear showing" necessary to justify the "extraordinary and drastic remedy" of a preliminary injunction.

First, the State contends the company cannot show that it is likely to succeed on the merits of its preemption claims.

"ENVY in fact waived these claims years ago, and that, coupled with ENVY's past recognition of State authority, is sufficient to defeat ENVY's claim for equitable relief," it wrote.

"Further, ENVY's preemption claims are contrary to the Atomic Energy Act, U.S. Supreme Court precedent, and NRC regulations, all of which confirm that states have authority to regulate nuclear power plants for non-safety-related reasons. Vermont has acted within its proper authority in requiring Vermont Yankee to have a valid (Certificate of Public Good)."

The State also argues that the company cannot show that its alleged irreparable harms are "actual and imminent."

"(Vermont Yankee's) CPG expires on March 21, 2012. There is nothing for the Court to enjoin before that date -- indeed, ENVY has not identified any state action that it seeks to enjoin now. The alleged harms that ENVY describes are based solely on ENVY's uncertainty regarding the continued operation of VY beyond March 2012," the Attorney General's Office wrote.

"That uncertainty cannot be redressed by an interim, preliminary decision that will be superseded by the Court's final ruling on the merits."

According to the Burlington Free Press, Entergy recently won a 20-year extension on its license from the federal Nuclear Regulatory Commission. However, the Legislature has not yet allowed the state Public Service Board to consider issuing a Certificate of Public Good. State law requires that all power plants must have such a certificate if they wish to generate electricity in Vermont.

U.S. District Judge J. Garvan Murtha has set hearings for June 23-24 on the injunction request. The overall lawsuit is expected to be heard in court in October, the Free Press reported.

From Legal Newsline: Reach Jessica Karmasek by e-mail at

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