Vt. lawmakers mull strategy after nuke defeat

January 20, 2012 - 8:55 PM

MONTPELIER, Vt. (AP) — Vermont legislative leaders said Friday they won't rush to craft new bills reacting to a federal judge's decision that lawmakers overstepped their authority in trying to close the state's lone nuclear plant.

House Speaker Shap Smith said the Legislature's legal researchers would review the court order to "help us understand the contours of our continued jurisdiction under that decision. At that point in time, I think we'll decide how we may move forward."

Senate President Pro Tem John Campbell said, similarly, that it was too soon to know what to do next.

That means the next decision affecting the future of the Vermont Yankee reactor in Vernon may be made elsewhere.

Attorney General William Sorrell's office has 30 days to decide whether to appeal Thursday's ruling by U.S. District Judge J. Garvan Murtha. The judge said lawmakers couldn't consider safety when they blocked the state Public Service Board from issuing a new state certificate for the plant to operate for another 20 years. He said nuclear safety issues are the bailiwick of national regulators.

Murtha sent the case back to the board, and the three-member panel is expected to reopen its review on whether to grant the certificate. The review has been on hold pending the resolution of the federal case.

Also on hold at the board is a request by plant critics to punish the plant owner, a unit of New Orleans-based Entergy Corp., for false statements Vermont Yankee executives made to the board and legislators in 2009.

Plant officials said Vermont Yankee did not have the sort of underground piping that carried radioactive substances. In early 2010, radioactive tritium was found leaking from underground pipes at the plant.

Patrick Parenteau, a professor at Vermont Law School who has been blogging about the federal court case, said in an interview that Murtha's decision "puts Entergy sort of right back where they were before" the Legislature passed a law, unique to Vermont, saying lawmakers had to give their approval before Entergy could get state permission to operate past its 40th birthday, March 21, 2012.

The federal Nuclear Regulatory Commission gave Vermont Yankee a 20-year license extension last March. Entergy sued the state the following month, saying it was pre-empted under federal law from imposing a decision contrary to the NRC's.

In the state's favor, Parenteau said, is that Murtha rejected Entergy's argument that Public Service Board authority over Vermont Yankee should be sharply curtailed based on the fact that it is a "merchant plant," not selling its power through a traditional utility system, but on the open market as a wholesaler to out-of-state power companies.

"That's important because it leaves the Public Service Board with authority over the plant," Parenteau said.

In yet another forum, the state and the watchdog group New England Coalition have gone to the U.S. Circuit Court of Appeals in Washington to ask it to overturn the NRC's decision on Vermont Yankee's license extension. The state and NEC argue that regulators overlooked that Vermont Yankee lacked a needed water-quality certificate under the federal Clean Water Act.

At issue is the heated water Vermont Yankee discharges into the Connecticut River after using the river water to cool plant components. Environmentalists say the discharge hurts some fish species and other aquatic life.

"We're really tired of them heating up our river," said Rep. David Deen, river steward with the Connecticut River Watershed Council and chairman of the House Committee on Fish, Wildlife and Water Resources.

While legislative leaders were mulling over the order, one longtime Statehouse lobbyist said Entergy's political troubles in Vermont most likely are far from over. Two bills would impose new and sharply higher taxes on the plant.

Kevin Ellis of the firm KSE Partners noted that Democratic Gov. Peter Shumlin, who issued a statement saying he was disappointed in the court decision, has been a staunch foe of Vermont Yankee.

"Any governor has all sorts of tools at their disposal to make life miserable for entities they don't like," Ellis said.