While it appears that Vermont has won the first round of its legal battle with Entergy Nuclear, the state still has a long way to go.
On July 18, U.S. District Court Judge J. Garvan Murtha refused to grant a preliminary injunction to Entergy that would permit its Vermont Yankee nuclear power plant in Vernon to keep operating beyond the scheduled expiration of its original 40-year operating license in March 2012.
The NRC granted a 20-year license extension in March. But the Vermont Senate voted last year to direct the Vermont Public Service Board not to issue a Certificate of Public Good. Under state law, the plant cannot operate without this document.
The Entergy v. Vermont lawsuit is set to begin on Sept. 12 in U.S. District Court in Brattleboro, and it appears that Murtha wants to get the case heard and settled quickly so that Entergy will know conclusively whether it will have to shut down next year or be allowed to stay open another 20 years.
In his ruling, Murtha didn't agree with Entergy's claims that it would suffer irreparable financial harm if the injunction were not granted. In effect, Murtha told Entergy that, even if it had to shut down next year after spending an estimated $65 million for the plant's next scheduled refueling outage, the outlay was in line with the kinds of financial risks that businesses often take.
However, based on his ruling, Murtha seemed to indicate that the state will have to do more to prove that its laws governing nuclear power generation - which apply only to Vermont Yankee - do not conflict with federal regulations, which prohibit states from regulating anything having to do with radiological safety.
This portion of the ruling doesn't necessarily mean that Murtha is siding with Entergy's claim that Vermont is attempting to usurp the authority of the U.S. Nuclear Regulatory Commission (NRC).
It only means that Vermont has to be on solid legal ground and show that it is not basing its objections to Vermont Yankee's continued operation on radiological safety and health concerns, areas that are solely the purview of the NRC.
The suggestion made by Pat Parenteau of the Vermont Law School - for the Legislature to convene a special session for a vote on Vermont Yankee's future - seems unlikely to happen. Gov. Peter Shumlin said last week that a special legislative session is unnecessary, because the 2010 vote by the Vermont Senate already made the state's intentions clear.
And, although Shumlin didn't say it, he presumably doesn't want to spend the money for a special session, because the state is going to need every penny it can scrounge up to pay for the legal costs of fighting Entergy.
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This case is not simply about the future of a 40-year-old nuclear plant in Vermont. It is about the future of nuclear power in the United States, and about whether local and state governments have the right to weigh in on plant operations.
It has been well-documented that the NRC is a classic example of a regulatory agency that is controlled by the industry it is supposed to be regulating. It has never said no to a license extension request.
Only days after the Fukushima disaster in Japan in March, the NRC signed off on another 20 years of operation for Vermont Yankee. The two reactors both share the same containment design.
Given the legitimate concerns over the many mishaps at Vermont Yankee, the Vermont Senate believed that it was not in the best interests of the state for the plant to keep running. Under the terms that Entergy had previously agreed to in 2006 under Act 160, the Senate had the power to control the plant's destiny, and it did so by a 26-4 margin.
This vote was the first attempt by a state to exert its authority over nuclear energy, and it was done through a process that both the state of Vermont and Entergy had signed off on.
Did Entergy think that Vermont would never vote to shut Vermont Yankee down? Did the company think that if Vermont lawmakers didn't vote to let the Department of Public Utilities issue the Certificate of Public Good, they could sue the state?
Entergy is not saying.
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But perhaps even more ridiculous than Entergy officials thinking that they could void previous commitments is the dance that the state is being forced to do.
The state must pretend that its objections to the continued operation of Vermont Yankee have nothing to do with radiological safety.
Yes, federal law prohibits states from regulating nuclear plants on safety issues, and this point is at the center of Entergy's lawsuit.
However, isn't the main objection to nuclear energy is that it is an enterprise that uses some of the most toxic substances known to humankind, and that the margin for public safety is thinner than the industry lets on?
As we saw at Fukushima, nuclear power is safe, clean, and reliable - until it is not.
As we saw at Fukushima, the assurances by the owner, Tokyo Electric Power Co., that everything was up to snuff turned out to be false when disaster struck.
As we saw at Fukushima, advance planning is useless if the planners fail to imagine the worst.
The people who lived around Fukushima trusted Tokyo Electric to run the nuclear complex safely. They have since learned that their trust was misplaced.
It took an earthquake and a tsunami to show all these things to the people of Japan.
Those of us in the region, whether we are supporters of Vermont Yankee or trying to shut the place down, owe our thanks to the plant employees who have kept the plant operating safely.
Think about it: Every day the plant operates safely is the result of the 600-plus employees averting catastrophe by virtue of doing their highly skilled, dangerous jobs.
Nuclear power is, by its very nature, a foreseen disaster.
Must we wait for an unforeseen disaster to strike in Vernon before we discover that Vermont Yankee is not as safe and reliable as we thought?