Vt. AG files appeal in power plant case

Jessica M. Karmasek Feb. 21, 2012, 10:15am

BRATTLEBORO, Vt. (Legal Newsline) - Vermont Attorney General William Sorrell is appealing a decision last month by a federal judge to keep Vermont's only nuclear power plant open past its scheduled March shutdown date.

Sorrell said Saturday that the State has appealed "all aspects" of the judgment entered by Judge J. Garvan Murtha, for the U.S. District Court for the District of Vermont.

"We have strong arguments to make on appeal. The district court's decision improperly limits the State's legitimate role in deciding whether Vermont Yankee should operate in Vermont beyond March 21, 2012," the attorney general said in a statement.

"The court's undue reliance on the discussions among our citizen legislators, expert witnesses, advocates and their constituents has the potential to chill legislative debates in the future. Left unchallenged, this decision could make it harder for ordinary Vermonters to clearly state their views in future legislative hearings."

He added, "I have taken seriously my responsibility to make this decision. We consulted with Gov. (Peter) Shumlin, other executive branch officials, legislative leadership and others. We took the necessary time to thoroughly consider our options."

The appeal will be heard by the U.S. Court of Appeals for the Second Circuit in New York City, according to the Attorney General's Office.

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.

In his 101-page decision filed Jan. 19, Murtha said the defendants -- including Shumlin, 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, he 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," the federal judge 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."

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

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