Federal judge rules Vt. power plant can stay open

Jessica M. Karmasek Jan. 20, 2012, 12:15pm

BRATTLEBORO, Vt. (Legal Newsline) - A federal judge has ruled that Vermont's only nuclear power plant can remain open past its scheduled March shutdown date.

The owner of the Vermont Yankee plant, New Orleans-based Entergy Corp., filed a lawsuit against the State for its role in deciding whether the plant can operate after its license expires in March.

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

Judge J. Garvan Murtha, for the U.S. District Court for the District of Vermont, filed his 101-page decision and order Thursday.

In it, he said the defendants -- including Gov. Peter Shumlin, Attorney General William Sorrell and members of the Vermont Public Service Board -- are permanently enjoined from enforcing the state's Act 160 by "bringing any enforcement action or taking other action" to compel the plant to shut down after March 21.

Under Act 160, when a nuclear plant petitions for continued operation, if the Legislature declines to act or is unable to pass for any reason affirmative legislation approving a Certificate of Public Good for continued operation, the plant's petition will remain pending and its current certificate will expire.

Murtha said the State also is permanently enjoined from enforcing a provision of state law requiring affirmative legislation to permit storage of spent fuel derived from operations at the plant after the shutdown date.

In addition, the federal judge said the State is permanently enjoined from conditioning the issuance of a Certificate of Public Good for continued operation on the existence of a below-wholesale-market power purchase agreement between Entergy and Vermont utilities, or requiring Vermont Yankee to sell power to Vermont utilities at rates below those available to wholesale customers in other states.

"This Court's decision is based solely upon the relevant admissible facts and the governing law in this case, and it does not purport to resolve or pass judgment on the debate regarding the advantages or disadvantages of nuclear power generation, or its location in this state. Nor does it purport to define or restrict the State's ability to decline to renew a certificate of public good on any ground not preempted or not violative of federal law, to dictate how a state should choose to allocate its power among the branches of its government, or pass judgment on its choices," Murtha wrote.

"The Court has avoided addressing questions of state law and the scope of a state's regulatory authority that are unnecessary to the resolution of the federal claims presented here."

In a statement following Murtha's ruling Thursday, Entergy said it was "pleased" with the decision.

"The ruling is good news for our 600 employees, the environment and New England residents and industries that depend on clean, affordable, reliable power provided by Vermont Yankee," it said.

Shumlin, however, was not so happy with the federal court's ruling.

"Entergy has not been a trustworthy partner with the state of Vermont," the governor said in a statement Thursday.

"Vermont Yankee needed legislative approval 40 years ago. The plant received approval to operate until March 2012. I continue to believe that it is in Vermont's best interest to retire the plant."

Shumlin said he will wait for the attorney general to review the decision before commenting further on whether the State would appeal.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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