Court: Vt. can’t use law to close nuclear plant

MONTPELIER, Vt. (AP) — Vermont’s attempts to close its lone nuclear power plant were deceptive and misleading, a federal appeals court ruled Wednesday in largely upholding a lower-court ruling against the state.

State lawmakers had safety in mind — but tried to hide that — when they passed laws in 2005, 2006 and 2008 making it harder for the Vermont Yankee plant to win permission to operate for another 20 years, a three-judge panel of the 2nd U.S. Circuit Court of Appeals wrote.

The plant began operating in 1972 and was bought by New Orleans-based Entergy Corp. in 2002. In the past it has provided as much as a third of the state’s electrical supply. Currently, nearly all of its power is shipped to electric companies in neighboring states.

The state wants the plant to close because of concerns about its safety and age. A state board is expected to rule this year on whether allow the plant to continue operating, but the laws passed last decade injected the Legislature into the state’s decision-making process. They require that lawmakers vote to approve the plant’s continued operation.

Entergy has argued in court that the state has no say over whether to keep the plant open and points to the federal Nuclear Regulatory Commission’s decision to extend the plant’s license to operate in 2011.

Nuclear safety is the sole province of the NRC under federal law. Aware of that, lawmakers and state officials tried to dance around the safety issue as they discussed bills aimed at closing the reactor in Vernon, the court said.

There was “obvious coaching of Vermont legislators to avoid explicit statements about nuclear safety,” the court wrote.

The state had argued that the legislative record used by Entergy in its lower court arguments was spotty and the company “cherry-picked” the most damning comments by lawmakers. And it said Entergy had gone along with the state’s safety concerns in legally binding agreements.

The appeals court didn’t buy it, calling the state’s account of the legislative record “inadequate and misleading.”

While the brunt of the decision went against Vermont, it rejected one complaint by Entergy. The company had argued that the state violated the U.S. Constitution by trying to require Entergy to sell Vermont Yankee power to the state’s utilities at bargain rates as a condition for getting a renewed state permit.

The court said because no such deal was ever struck, the issue wasn’t ripe. But it issued a stern warning to Vermont not to try it in the future.

While it rejected Entergy’s complaint, “we do not suggest that any (deal) providing favorable pricing for Vermont residents would pass muster,” it said.

If Entergy had prevailed on the claim of a violation of its constitutional rights, Vermont could have been required to pay its legal bills, estimated last year at more than $4.6 million and climbing.

Overall, Entergy officials said they were pleased with the decision.

“We have felt strongly for a long time now that the state of Vermont’s acts … were pre-empted by federal law,” Terry Young, Entergy vice president for nuclear communications, said in an email.

Sandra Levine of the Conservation Law Foundation, one of several New England-based groups seeking the plant’s closure, called the decision “a disappointing failure to allow Vermont a stronger say in regulating this tired old plant on the banks of the Connecticut River.”

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