Louisiana-based Entergy Corp. is suing the state of Vermont in order to continue operating the Vermont Yankee nuclear plant after its state operating license expires in 2012.
Richard Smith, president of Entergy Wholesale Commodities, made the announcement Monday morning, shortly after the corporation filed the lawsuit in U.S. District Court against Vermont.
Entergy sought a license to continue running the plant for an additional 20 years. Vermont Yankee provides about one-third of the state's electricity and employs 650 people (about 200 of whom are from Vermont).
The suit is based on an assumption of federal pre-emption of state law under the Atomic Energy Act, the Federal Power Act Preemption and the Commerce Clause of the U.S. Constitution. The Nuclear Regulatory Commission renewed Entergy's license to operate Vermont Yankee last month; in a 26-4 vote last year, the Vermont State Senate denied the corporation an opportunity to seek a Certificate of Public Good from the Public Service Board to renew its license.
The lawsuit, filed by Matthew Byrne of Gravel and Shea, a Burlington-based law firm, summed up the nature of the complaint as follows: “The question presented by this case is whether the State of Vermont, either through a state administrative agency (the PSB) and/or the state legislature (the General Assembly) may effectively veto the federal government's authorization to operate the Vermont Yankee Station through March 21, 2032.
Smith told reporters in a telephone conference call that “litigation is by far our least favorite approach,” but that the disagreement with Vermont couldn't be resolved any other way. Entergy, he said, offered a 20-year power purchase agreement with state utilities and offered to negotiate with the Vermont Department of Public Service to establish a date for decommissioning the plant.
Last month, Entergy announced that its attempts to sell Vermont Yankee to prospective buyers fell through because of the anti-nuclear political environment in the state.
“The governor and many in the General Assembly have concluded the plant should be shut down,” Smith said. “This has left us with no other choice but to seek relief in the court system.”
The announcement came just two weeks after Entergy officials told Gov. Peter Shumlin that they planned to continue operating the plant - without permission from the state - after the mandated shutdown date of March 21, 2012.
“At that meeting they indicated they wouldn't be suing the state, they would just instead continue to operate the plant,” Shumlin said at a press conference on Monday. “Obviously, they changed their minds.”
Attorney General William Sorrell told reporters that the lawsuit was not unexpected. In fact, Sorrell said he and a team of three staff lawyers had been preparing for just such a potentiality for months.
Sorrell said that now that the battle is “joined,” he foresees a long legal engagement with Entergy ahead.
“I can't imagine this case is going to be resolved at the district court level here in Vermont and that's going to be the end of it,” Sorrell said. “Perhaps, but I think it's entirely likely that this is a case that will be appealed by one party or other to the federal appeals court in New York City and conceivably beyond that. Although we could get an initial read on the case in the relatively near future, it's entirely possible that this case will be litigated for quite some time into the future.”
Entergy purchased Vermont Yankee in 2002. Four years later, Gov. James Douglas and the Vermont Legislature passed Act 160, requiring that Entergy obtain a Certificate of Public Good from the Vermont Public Service Board in order to continue operating the plant beyond its original license expiration on March 21, 2012. At that point, the plant will be 40 years old.
Shumlin said in 2006, when the law was signed by Douglas, “Entergy Louisiana enthusiastically supported the bill.”
He cited comments made by Rob Williams, a spokesman for the plant, in a 2006 story in the Rutland Herald. Williams said that he commended the Legislature “for putting a lot of effort into drafting a bill that should serve the state well.”
“I should also remind you when Entergy Louisiana bought the plant, it signed a memorandum of understanding that they would comply with all Vermont laws,” Shumlin said. “We fully expect Entergy Louisiana to be held to the same standard as any Vermonter - that they follow Vermont laws. As governor, I will see to it that Entergy Louisiana does follow the law.”
Smith said the state of Vermont “changed the rules on us.” The 2006 law, he said, “took control of plant's future away from the Public Service Board and instead it placed Vermont Yankee's fate in the hands of political decisionmakers, namely the state General Assembly and the governor who could deprive (Entergy) from operating the plant for unsupported, arbitrary reasons. This is not what we signed up for in 2002.”
Shumlin has long opposed relicensure of Vermont Yankee because the aging plant has been plagued by problems (a water cooling tower collapse, transformer fire, tritium leaks, radioactive steam releases inside the plant and maintenance glitches).
Entergy officials, however, maintain that Vermont Yankee is one of the most reliable and best performing nuclear plants in its fleet.