Coakley files brief in Vermont Entergy case

Jessica M. Karmasek Jun. 16, 2011, 1:21pm

Martha Coakley

BRATTLEBORO, Vt. (Legal Newsline) - Massachusetts Attorney General Martha Coakley on Monday filed an amicus brief in support of Vermont's opposition 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 Vermont 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.

Vermont, in its 68-page memorandum filed last month 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.

The State 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.

Therefore, it argues, Entergy cannot make the "clear showing" necessary to justify the "extraordinary and drastic remedy" of a preliminary injunction.

Coakley, in her 14-page amicus brief filed in the U.S. District Court in Brattleboro, agrees with Vermont. The attorney general contends the company's arguments also fail because they are "divorced from the constitutional limits on the Supremacy Clause."

Coakley says her state has a "significant interest" in the matter.

"Numerous electricity-generating plants are located in the Commonwealth, including one existing and operational nuclear facility in Plymouth, Massachusetts, the Pilgrim Nuclear Power Station," she wrote in the brief.

"This facility, and any other nuclear power plants that may be proposed, constructed or operated in the Commonwealth in the future, inherently have, or would have, associated with them a host of far-ranging issues, including, for instance: the need for power generation, land use, environmental concerns, ratemaking, economic issues, safety and security concerns, and costs of construction, operation, transmission, short- and long-term waste disposal and management, spent nuclear fuel storage, and emergency response planning."

Massachusetts, she says, has a "critical interest" in preserving its ability to regulate nuclear power generation within its borders as it sees fit, within constitutional limits.

"The preemption questions presented in this proceeding, while specifically focused on Vermont laws, implicate the same type of constitutional analysis that may be applied if the Commonwealth's laws regulating nuclear power plants are subjected to a preemption challenge," Coakley wrote.

The attorney general says her state also has a "strong interest" in the ability of its sister state to exercise its police powers effectively with respect to the Vermont Yankee station. As she points out, the power plant is situated less than five miles from the Massachusetts border, on the Connecticut River, which flows through Massachusetts, and which supplies electricity to residents and businesses in the Commonwealth.

She also points to the meltdowns at the nuclear power plant in Fukushima, Japan, following the devastating earthquake and tsunami that hit the country March 11.

"In the event of an incident involving the release of high-level radiological material from Vermont Yankee Nuclear Power Station, Massachusetts communities could face contamination of soil, water, and agriculture resources that would force displacement of residents and businesses, conceivably devastating state or local economies for years into the Commonwealth's future," Coakley wrote.

The Vermont Yankee station, she notes, also supplies energy to the entire New England power grid.

"To be clear, the Attorney General takes no position on whether Vermont Yankee should, or should not, be allowed to continue to operate after March 2012, and she does not address the specific provisions of Vermont law being challenged. Rather, the Commonwealth's interests on this front relates to its need to understand and plan for changes to the region's energy supply to the extent such changes will affect residents and businesses," the brief said.

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.

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

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