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 legislators passed laws in 2005, 2006 and 2008 making it harder for the Vermont Yankee plant to win permission to operate for another 20 years. They were concerned about the plant’s safety but tried to hide that because they were aware that nuclear safety is the sole province of the U.S. government under federal law, a three-judge panel of the 2nd U.S. Circuit Court of Appeals wrote.
There was “obvious coaching of Vermont legislators to avoid explicit statements about nuclear safety,” the court wrote.
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.
Plant owner New Orleans-based Entergy Corp. 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.
Vermont Yankee opened in 1972 in Vernon. In the past, the plant 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 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, the judges 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.
Vermont Attorney General William Sorrell called the ruling disappointing. He said the state could ask the full appeals court to reconsider the three-judge panel’s decision, or, more likely, appeal the decision directly to the U.S. Supreme Court.
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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