Entergy Sues to Keep Vermont Yankee Open

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Entergy Corp., owners of the Vermont Yankee nuclear power plant, filed a lawsuit against the state of Vermont in U.S. District Court this morning. The Louisiana-based company says the Nuclear Regulatory Commission — not Vermont lawmakers — should decide whether the plant can continue operating beyond 2012.

The NRC has already granted the plant a 20-year license extension, but the Vermont Senate voted last year to deny Entergy permission to keep operating the plant beyond next year.

The lawsuit comes as no surprise. Shay Totten explored the possibility that Entergy would sue in a story in the February 2010 Vermont Yankee issue of Seven Days (Shay is on vacation this week.)

From last year's story:

Rep. Tony Klein (D-East Montpelier) said he has discussed the issue with several attorneys and believes Vermont is on solid legal footing.

Others are not so sure. Vermont Law School Professor Cheryl Hanna says Entergy could have a strong case against the legislature. That’s because Vermont is the only state whose lawmakers have given themselves the authority to weigh in on this debate. Entergy could argue in court that a political body does not have the scientific background or expertise to make such a decision, says Hanna.

Gov. Jim Douglas has been making similar arguments for months: The legislature should let the “experts” decide Yankee’s case.

Entergy’s legal outcome would largely depend on who first presides over the case in Vermont, Hanna added. Judge William Sessions has a strong record in favor of allowing states to carve out regulatory niches, but newly appointed judge Christina Reiss has no such track record. Beyond Vermont, Hanna said, it’s not clear how well Entergy would fare.

Click here to read more of Shay's analysis. File illustration by Tim Newcomb.

Comments

[Tim]

[Renault has ordered that Rick's close immediately]
Rick: How can you close me up? On what grounds?
Renault: I’m shocked, shocked to find that gambling is going on in here.
Employee of Rick's: [hands Renault money] Your winnings, sir.
Renault: Oh, thank you, very much. Everybody out at once!

http://en.wikiquote.org/wiki/Casablanca_(film)

[Jimmy]

The BFP has a good story on this - the suit that was actually filed, with current statements from the parties, and a link to the papers.

[Gameon]

"Rep. Tony Klein (D-East Montpelier) said he has discussed the issue with several attorneys and believes Vermont is on solid legal footing."

What the . . .? So Representative Klein's an expert in federal pre-emption issues? Do the "several attorneys" he's supposedly discussed the issue with have ANY experience at all in federal pre-emption issues? Has any one of them -- whoever they are -- actually ever litigated a federal premption case? This is something very, very few lawyers in the entire country ever deal with. Ever.

I've discussed the issue with several barbers, and they think VY will win. I'm taking the barbers over the storefront attorneys in East Montpelier.

[Cathy Resmer]

You're right, Jimmy, though I just went to find it to copy the link and paste it here, and couldn't find it quickly on their site. If someone has it, please post it in the comments.

Here's a link to their story on Shumlin's response.

[Jimmy]

The story you linked has it, that's the story I was referring to. It's the featured story on their home page.

[Jcarter]

No surprise here. It was only a matter of time before Entergy filed suit. Now we will see where it goes. It is interesting to read the opposite sides argument "entergy agreed to follow the 2002 agreement" v. "The legislature changed the rules from the 2002 agreement by pre-empting the PSB" ... "The PSB is a legislative entity, ergo VY agreed to abide the legislatures decision"...

Round and round in circles. And the video footage from WCAX this morning was telling, Sorrell is itching for this. Another chance to spend millions of tax dollars and get his face time in front of the SCOTUS. The man has a bigger agenda the State's Attorney General.

[jonathan]

"Sorrell is itching for this. Another chance to spend millions of tax dollars and get his face time in front of the SCOTUS. The man has a bigger agenda the State's Attorney General.

And what's his track record in defending the VT poorly thought-out laws against attack, such as campaign finance and prohibiting use of doctors' prescribing records?

VT continues to refuse to pick its legal battles wisely, costing the VT taxpayers millions in these futile legal fights.

[strat123]

Entergy's move is not surprising as Shay called out over a year ago. But the lawsuit has less to do with its declared merits than it does delay tactics. If they can punt this thing 7-8 years down the road, then that's 7-8 years of gravy to heap onto the mashed potatoes.

It's ironic to see a concern over AG Sorrell's "futile" waste of taxpayer money but no concern whatsoever over taxpayers' burden in both ensuring compliance from VT Yankee and what lies ahead in a post-Yankee era.

[Jcarter]

"It's ironic to see a concern over AG Sorrell's "futile" waste of taxpayer money but no concern whatsoever over taxpayers' burden in both ensuring compliance from VT Yankee and what lies ahead in a post-Yankee era."

Not really. On the one hand you have a millions of dollars spent defending what is believed by some to be an illegal vote by the Vermont Senate. Remember, Sorrell and his "team" have been preparing for "months" already.

The other hand is that some people are perfectly fine with the NRC doing their job to ensure compliance. As for post Yankee, one must assume you mean decommissing which isn't a concern. There are again NRC guidelines. Lets let the experts worry about the job they were hired and are paid to do. Let the Legislature do the same.

Regardless, it is ironic, it isn't even surprising if you can separate your feelings long enough to consider the other view.

[strat123]

"Regardless, it is ironic, it isn't even surprising if you can separate your feelings long enough to consider the other view."

This from the person framing opponents of VT Yankee as "futile". How about taking your own advice and leave analysis of "feelings" to the experts?

If your philosophy is to "leave it to the experts", why are you ragging on Sorrell? Was he not hired and paid to defend Vermont law?

Also, when you say "As for post Yankee, one must assume you mean decommissioning which isn't a concern," are you saying the decommissioning fund is in healthy shape as-is? Are you saying Entergy has committed to paying expenses to maintain the spent-rod storage pool for the half-life of the stored waste?

Just curious....

[Jcarter]

Regarding Sorrell,

I did not rag on Sorrell for defending state law. My comment was directed at his over exuberance at the prospect. He is clearly itching for this fight. As Attorney General it is his duty to defend the states interest, if he believes in this then so be it. He should also be doing so from the viewpoint of Vt's interest and not political beliefs. One doesn't typcially get overly excited about things they are doing on the behalf of others. For Sorrell, this is another 15min of fame in the limelight, not about protecting the welfare of this state.

Re: Decommissioning

No that's not what I am saying at all. I said decomissioning is not a concern. See, I didn't say anything to the effect of "As-is" or currently. Mainly because the fund is a political stunt. The NRC oversee's decommissioning, they have sole authority to determine what decommissioning is. They also require Entergy-Yankee to decommission the plant as they deem. You will note I specifically didn't mention cost. Because it doesn't play a role. The NRC will determine when decommissioning has occurred to the extent necessary and that will be regardless of cost and independent of the amount in the fund.

FYI, I don't frame opponenets as futile. I submit they are typically overly idealistic and frequently ignore the facts that don't agree with their predetermined stance. On the other hand I know what I believe, and I know many of the arguments of the opposite side. Some I don't believe apply, some worry me with regards to VY continuing their operation, and some I recognize as political fodder. I also recognize that simply because the legislature/Congress passes a bill which is signed into law does not necessarily make it legal. Just because the Legislature decided to grant themselves this power does not mean they legally have that power. We will soon find out one way or the other.

[Tim]

It would be a shame if Vermont Yankee distracted Sorrell from his fight to ban sugared drinks.

[jonathan]

"If your philosophy is to "leave it to the experts", why are you ragging on Sorrell? Was he not hired and paid to defend Vermont law?"

I'll repeat, the AG's office seems to pick and choose what state laws and policies it chooses to defend. Further, your question seems to imply that Sorrell is an expert, like the PSB. He is a politican. Big difference. Lastly, I think Jcarter's point is well-taken. If Mr. Sorrell is going to defend the State Senate's decision to deprive the PSB of its decision-making authority over VY, then so be it. But why does he have to act so darn excited about it? This isn't a TV reality show.

[strat123]

About Sorrell acting "excited" about this Entergy lawsuit, it sounds like one (two?) person's perception(s). If he had not been preparing, would he then be considered to be too dismissive, cozy with Entergy (not unlike the Tom Salmon criticism), or unqualified to hold the office?

I'm not a big Sorrell fan, but I don't doubt his credentials even despite his losing record.

Statements like "the [decommissioning] fund is a political stunt" are at best a fraction of the truth. You seem to recommend trusting the NRC entirely, despite the fact they have never contended a nuke plant decision and despite a slew of articles highlighting their close relationship with industry operators. You're welcome to roll your dice how you want, but some of us have lost patience with Entergy's - and the NRC's - tactics.

If Entergy was so concerned about the 2006 law change, why did they wait 6 years to file their lawsuit? They've technically experienced no material loss until their license is officially denied by VT.

[Jcarter]

"You seem to recommend trusting the NRC entirely, "

As a taxpayer I pay them to do a job. I think I should let them do it. Otherwise, lets fold up shop and do something else. It is entirely foolish to pay people to do a job and then dismiss the job they are doing... I don't second guess Sorrell for doing his job? I second guess his motives, but not his decision. He has a job let him do it.

Moreover, what exactly does the NRC reliciensing record have to do with their trustworthiness? Since there have been plants decommissioned one would logically conclude that unsafe plants are decomissioned and the safe plants are put up for renewal? Considering the lengthy and costly process it wouldn't make good business sense to try and relicense a decript plant. Thats' probably why some plants are simply decomissioned on their own. It doesn't mean that you can't trust the NRC or their review process. Factually, the NRC has never relicensed a plant that went on to have a catastrophic failure. I'd say their track record indicates you can trust them.

[Jimmy]

"If Entergy was so concerned about the 2006 law change, why did they wait 6 years to file their lawsuit? They've technically experienced no material loss until their license is officially denied by VT."

You've mostly answered your own question - there was no point until it became obvious that it was going to pose a problem for them. Lawsuits cost money. They are also saying that their inability to sell the plant was in part due to the legislature's vote and the Governor's claim that he can withhold their license.

I still haven't seen Vermont's defense to this suit clearly articulated. Entergy agreed to be subject to PSB approval, Vermont's position seems to be "uh, we really meant the legislature."

[Jonathan]

"If Entergy was so concerned about the 2006 law change, why did they wait 6 years to file their lawsuit?"

In addition to answering your own question with your next sentence (i.e., there was no actual harm from the 2006 law until the Senate actually used its power under the law by voting against VY last year, so why sue), I guess you haven't read what Entergy has been saying over the last day or two: despite the law, they've been trying to negotiate with the state. Seems pretty reasonable to me. If they had sued any sooner, they'd be accused of not trying to negotiate first.

[Vermont Hum with Brian McClintock]

We have been predicting for years. Please read this March Hum report.

NOSTRADAMUS PREDICTED ENTERGY LA/VERMONT YANKEE WOULD CONTINUE AFTER 2012
We bet Nosty will predict correctly. Here's what will most likely happen.

1. Nuclear Regulatory Commission will give thumbs up to E-LA/VY, 'cuz that's what they do with nuke plants ready for relicensure - 63 times in a row, to be exact.
2. The feds will then step out of the way, letting Peter (Shumdog Millionaire) Shumlin, the Vermont Legislature, and E-LA duke it out, probably in court.
Even if Vermont wins litigation, it will have taken years and during that time E-LA will have produced and sold mucho power, because they have the license, willing purchasers, and millions of bucks for more than one appeal. One official even predicts that the legal process will take up to half of time of the renewed license period.
If Vermont loses, there's an appeal, and E-LA cruises to victory, making good revenue and avoiding protesters, living in LA. Louisiana, that is.
3. Shumdog Millionaire comes out of this smelling sweet, for he fought the good fight, energizing the base, against Entergy Louisiana, probably knowing how it would play out.

[jonathan]

"3. Shumdog Millionaire comes out of this smelling sweet, for he fought the good fight, energizing the base, against Entergy Louisiana, probably knowing how it would play out."

ONLY if Vermonters decide they don't really care about the millions of taxpayer dollars that will be wasted on losing "the good fight." I will not be one of them.

[snark]

I'm so jealous of JCarter's confidence in the federal government.

[Jimmy]

You're right Snark, I am far more confident in the judgment of noted nuclear safety expert Tim Ashe than that of the Nuclear Regulatory Commission.

[Jcarter]

I am certainly much more confident in a body of experts whose sole purpose is to keep tabs on the going on's and safety of nuclear power plants then I am of a part-time body of people with varying levels of intelligence and backgrounds who have political generated motives in addition to moral motives.

If you don't have any confidence in the NRC I suggest you petition one of our good Senators to disband them. Feds are trying to cut costs, now might be a good time to pitch some savings in a body that apparently in your opinion isn't capable of doing the job they are hired, trained and paid to do. I suggest Bernie.

Is it just the NRC or should we also get rid of ICE/BP/DHS/DOD/DOJ too?

[gameon]

"I'm so jealous of JCarter's confidence in the federal government."

I'm so jealous of Snark's apparent confidence in the Shumlin Administration. After all, we all know that his motives have always been 100% pure and not at all motivated by partisan politics.

And of course that's also true for all the Mensa-members in the Legislature who all undoubtedly know a lot about energy issues.

[Don Worth]

Is the Good Life Possible with Vermont Yankee?

Vermont has “pro-nukes,” “anti-nukes” and those residents not seeming to fit in either group…perhaps there’s room for another category entitled, “anti-Vermont Yankee?” Some Vermonters have said they’re not against nuclear power, (if) the leaks can be stopped, the spent fuel rod storage problem can be solved and the structures can be fabricated to withstand all possible weather anomalies.

Vermont Yankee (VY) is located in the town of Vernon which sits in the southeastern corner of the state at the junction formed by the Connecticut River and the Massachusetts border, and was once actually a part of the town of Hinsdale, NH. Purportedly, Vernon’s 2141 people have even discussed seceding from Vermont (to either NH or MA) if the Legislature refuses to grant VY a license extension beyond 2012.

VY, operating since 1972 and employing about 650 people, is the state’s largest power source with a nominal 540 megawatt boiling water reactor, and is one of five operating nuclear plants in New England. In 2002, VY was sold by eight New England utilities to Entergy Nuclear Vermont Yankee, LLC, a subsidiary of the Entergy Corporation of New Orleans, the second largest nuclear generator in the US.

In February of 2010, the VT Senate voted 26-4 against allowing the Public Service Board (PSB) to consider re-certifying VY after 2012, citing radioactive (tritium) leaks, misstatements in testimony by plant officials, a cooling tower collapse in 2007 and other problems. In the event the PSB refuses to issue them a Certificate of Public Good, VY could elect to continue to operate and the case would be decided in court, since the federal Nuclear Regulatory Commission (NRC) has recently granted a license renewal to operate until 2032.

So, where does all this see-sawing leave the customer who’s concerned about how high electric bills will be if VY closes? Since the Vernon plant supplies about a third of the state’s total power, how will that amount be replaced? The average Vermont Electric Cooperative (VEC) member would pay between 50 & 60 cents extra each month if VY closes. Replacement power will have to be purchased from the New England grid, which isn’t the most cost-effective way to obtain electricity, but it appears to be the best option right now.

If Vermont Yankee’s past record predicts its future and safety modifications aren’t made, many Vermonters feel it should be closed permanently. Most VEC members seem to agree. Perhaps divining its prospects, two days after Peter Shumlin became the new VT Governor, Entergy put Vermont Yankee up for sale.

(Don Worth is the Director for District 1 on the VEC Board of Directors and is running for re-election in May. The foregoing does not express the opinion of VEC or its Board.)

[Jcarter]

Don thanks for the wiki-recap.

If VY's past record is an indication of the future then we are due for another cooling tower collapse and leaky pipe somewhere around 2040.

But the purported seceding from the state is in fact interesting... JUST DO IT!! That would sure get Slumlin all riled up. VY continuing operation with all the proceeds headed to somewhere else.... No more CEDF, no more easy political pickings. I love it, great idea. I swear I will move to Vernon the day after this happens.

[Townsend Peters]

Cheryl Hanna needs to read up on some law. She apparently is smarter about this area than the official pronouncements of the Nuclear Regulatory Commission (NRC), which clearly state that “the final decision” on continued operation of a nuke is up to other, non-NRC decision-makers _including_ the states.

Here’s one, from volume 61 of the Federal Register, page 28743, 1996:

“After the NRC makes its decision based on the safety and environmental considerations, the final decision on whether or not to continue operating the nuclear plant will be made by the utility, State, and Federal (non-NRC) decisionmakers. This final decision will be based on economics, energy reliability goals, and other objectives over which the other entities may have jurisdiction. The NRC has no authority or regulatory control over the ultimate selection of future energy alternatives.”

If the NRC is right – and it is, after all, _NRC_ preemption that Entergy asserts – then Entergy loses.

[Jimmy]

"over which the other entities may have jurisdiction."

Uh... yeah, bummer.

Thanks for cross-posting your screed, though.

[gameon]

You're almost there, Peters, but not quite.

Nobody's disputing that the state may have jurisdiction over issues other than safety. Duh. That's not what this fight is about.

The issue is that in voting not to allow the PSB to proceed with a re-licensing decision, the Vt. state senate was basing its vote on concern for safety -- whether it admits it or not -- thereby intruding on the NRC's exclusivity. The debate leading up to that vote made it quite clear that senators were voting on safety. The Shumlin Administration is now trying to pretend that the vote wasn't about safety. But we all see through that. Except you, apparently. Even Shumlin couldn't always remember not to use the word "safe" or similar terms when discussing why he thought the plant shouldn't be relicensed. He kept slipping into language about safety.

The point VY is making is that the state's decision not to relicense VY isn't about the issues that the state DOES have control over, but about the one single issue that it DOESN'T -- safety. The state isn't even trying to say that the fight is about economics or reliability. VY power is cheap, and, as power plants go, VY is extremely reliable. Even the commission that included Shumlin's hand-picked VY-hater, Arnie Gunderson, admitted that the plant could be operated well into the future.

This is all about the state's attempt to shut down VY based on safety, which is pre-empted.

The second issue is that the state welched on its 2002 agreement with Entergy to allow the PSB decide all the issues over which the state has jurisdiction.

Are you with us now?