By Alan Panebaker vtdigger.orgVermont Attorney General Bill Sorrell has been meeting with the governor, the Department of Public Service and legislative leaders as he weighs whether to appeal Judge J Garvan Murtha’s decision to rule against the state in a lawsuit involving the Vermont Yankee Nuclear Plant.
Vermont AG William Sorrell defended the state in a lawsuit brought by Entergy. VTD/Josh Larkin
Meanwhile, the Vermont Public Service Board has yet to reopen the docket to approve the certificate of public good for the 40-year-old nuclear power plant, a requirement for continued operation. Entergy could request it to reopen or the board could request a status conference, but neither has happened yet.
As the state weighs the merits of an appeal, the looming issue is the extensive evidence in the record highlighted by Entergy attorneys and Judge Murtha that Vermont lawmakers discussed radiological safety concerns with the plant ‘ an area that is specifically reserved for federal regulation under the Atomic Energy Act.
While the 50-some pages of Murtha’s opinion discussing legislative history imply the state was really trying to regulate safety may seem grim for the state on appeal, Sorrell said there is plenty of other evidence in the record that the state had a permissible purpose.
Among the hundreds of pages of exhibits the state introduced, Sorrell said, was a letter from the chair of the Nuclear Regulatory Commission to former chairman of the Public Service Board Michael Dworkin in which the federal official acknowledged that states can legitimately regulate reliability issues.
The letter from former NRC Chairman Nils Diaz states, ‘The NRC’s statutory authority does not extend to regulating the reliability of electrical generation.’
It goes on to state that ‘there is some overlap’ in the issues involving safety and reliability.
DownloadNRC Diaz letter 5-4-04
Sorrell said the state’s case also included testimony from Speaker of the House Shap Smith and numerous statements from legislators clarifying that Act 160, the bill requiring legislative approval for Vermont Yankee to receive a new certificate of public good, was in fact based on reliability concerns.
Sorrell said Murtha’s decision is inconsistent with the U.S. Supreme Court case which found a California law constitutional that instituted a moratorium on new nuclear plants until the state energy commission found there was a means to dispose of nuclear waste. That decision began with a presumption against preemption of state law and found the state law was valid based on the state’s avowed economic purpose for enacting the moratorium.
‘The U.S. Supreme court said ‘we’re not going to go there and get into this ugly process of lawmaking, rather we’re going to look at the finished product and assume that they said was in fact what they say it was,’‘ Sorrell said.
While the state mulls the decision to appeal, another clock ticks for Vermont Yankee’s certificate of public good.
The Vermont Public Service Board must approve a certificate of public good for the plant to continue operating, and the board’s authority in this area is quite broad.
If Entergy doesn’t obtain a certificate by March 21, it cannot legally operate in Vermont.
A 2007 board decision outlines eight criteria for a certificate of public good, including business reputation and relationship with customers. The decision, which involved Fairpoint’s attempted acquisition of the local assets and operations of Verizon, notes that the board’s authority in determining whether to approve a certificate of public good is ‘broad.’
The statute, ‘permits the Board to exercise its jurisdiction so far as may be necessary to enable it to perform its duties and exercise the powers conferred upon it by law in issuing a CPG, the Board may tailor conditions appropriate to the planned activities of the petitioner,’ the decision states.
One of the potential roadblocks for a new CPG for Entergy is the fact that the electricity sold after March will have to go out-of-state since local utilities’ contracts with the plant expire that month.
It appears this is a criteria the board could consider.
Gov. Peter Shumlin implied that this fact could play a role in the Public Service Board proceeding in an interview with Vermont Public Radio on Monday.
1.24.2012 vtdigger.org