BRATTLEBORO — The future of the Vermont Yankee nuclear power plant in Vernon now rests in the hands of a federal judge.
Both sides gave their closing arguments in U.S. District Court Wednesday in the case of Entergy Corp. versus Vermont.
Entergy, which owns Vermont Yankee, sued the state earlier this year, claiming the Legislature stepped outside of its authority by enacting bills aimed at assessing the plant’s safety, preempting the federal authority of the Nuclear Regulatory Commission in the process.
The bills in question are Acts 74, 160, and 189, all dealing with Vermont Yankee.
Act 160 in particular relieved the state’s Public Service Board of its historical duty of issuing a certificate of public good. That certificate is necessary for any utility to determine whether it serves the general good of the state. The act instead gave the power to issue those certificates to the state Legislature.
Last year the state Senate voted not to issue the certificate, 26-4, while the NRC extended Vermont Yankee’s operating license for 20 years.
Entergy’s legal team, led by New York-based attorney Kathleen M. Sullivan, argued state officials consistently had safety concerns in mind while discussing and enacting the questioned statutes, preempting the authority of the NRC, which regulates nuclear safety.
“Why did the Legislature feel it couldn’t leave the certificate of public good to the Public Service Board?” Sullivan asked. “(Because) the PSB just might give (Entergy) the CPG.”
Sullivan argued that state legislators, knowing they can’t regulate nuclear safety, instead found alternative language to use in place of that word.
“Their concern was that they wanted to represent the safety concerns of their constituents, but how?” she asked.
Sullivan’s team played several audio clips in which Vermont lawmakers make statements such as “let’s find another word for safety,” and one in which a lawmaker said “excuse me” when he used the word “safety” during a discussion about the legislation in question. In another clip, a lawmaker is heard saying “I’m pretty good at tying just about anything to reliability,” a term suggested to be used in place of the word “safety.”
Sullivan said it was clear they were trying to talk around the safety issue.
“If they’re truly concerned about reliability, why the need for this mental exercise to tie (their concerns) to reliability?” Sullivan asked.
“There’s a constant effort (on behalf of legislators) to remember that, and to not say what’s on their minds,” Sullivan said. “Your heart goes out to these people who have to keep correcting themselves from talking about safety.
“It’s not just the language that’s a problem; (the question is) what’s really on the Legislature’s mind when (the bill was) enacted,” Sullivan said.
But the state legal team, in its closing argument, said it’s impossible to answer that question.
“What each legislator was thinking when their vote was cast isn’t even an inquiry that can be accomplished,” said Bridget C. Asay, one of the attorneys representing the state.
Furthermore, Asay argued that even if the Legislature enacted the statutes and took a vote thereafter based on the impermissible purpose of safety, the legislation should still be upheld based on other, permissible purposes.
Concerns about reliability, future energy planning, economics and environmental sustainability are not only relevant with regard to the legislation in question, but consistent with the state’s long-term objectives, Asay argued.
“These are goals Vermont has pursued for decades,” she said. “They weren’t written on the back of a napkin and inserted into the legislation.”
Asay said the closure of Vermont Yankee could “free up market space for more diverse and sustainable practices,” and that because the plant has historically provided a third of the state’s power, “of course (the state) is concerned with future planning.”
Asay added that reliability and economics are legitimate concerns based on the potential impact to Vermont’s energy supply in the event of a major accident at Vermont Yankee that results in a shutdown of the plant.
The state Legislature has the right to vote to shut the plant down for reasons that don’t preempt federal jurisdiction, Asay argued.
The fact that Entergy signed a memorandum of understanding when Act 74, which deals with dry fuel storage approval, was passed shows it was engaged and on board with the process from the beginning, Asay said.
“Entergy ... also agreed to waive (future claims of) preemption,” she said. “March 21, 2012 (the date Vermont Yankee’s current operating license expires) has been the status quo all along, and Entergy knew that when they bought the plant.”
Asay pointed to Entergy’s initial reaction to the legislation, specifically Act 160, reading a memo from an Entergy spokesman that praised the law for laying out a simple plan, commending the Legislature for its efforts.
“Entergy has made commitments to the state and worked with the state when it worked to its benefit,” she said. “It did that for years. We don’t think the court should let Entergy walk away from its promises, and we ask you not to set aside the statutes that legislators worked so hard on.”
In her rebuttal, Sullivan pointed to the fact that Vermont Yankee is a wholesale plant, and therefore should not be penalized for economic reasons.
“I never heard an answer about why they have to buy power from us,” she said. “You don’t think we’re reliable? Don’t buy power from us. You want different sources (of energy)? Don’t buy from us.
“It (closing Vermont Yankee) doesn’t accomplish any of these other theoretical interests,” Sullivan said.
Entergy is asking Judge J. Garvan Murtha do throw out the statutes and allow the Legislature to start anew.
Each side has until Sept. 26 to file post-hearing briefs. It’s unclear when Murtha will rule on the case.
Kyle Jarvis can be reached at 352-1234, extension 1433, or email@example.com.