Sorrell

BRATTLEBORO, Vt. (Legal Newsline) - Vermont Attorney General William Sorrell has filed an appeals brief in his effort to regulate the Vermont Yankee nuclear power plant.

U.S. District Court Judge J. Garvan Murtha ruled against Sorrell earlier this year, finding that Vermont officials are enjoined from deciding whether the plant's license should be renewed. Sorrell submitted his appeal Monday to the U.S. Court of Appeals for the Second Circuit.

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 found that Act 160 was preempted by federal law.

"The district court's cherry-picking from the incomplete legislative record for favorable snippets was erroneous, therefore, and should be reversed," Sorrell's brief says.

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 Gov. Peter 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 John O'Brien by e-mail at jobrienwv@gmail.com.

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