For the better part of a year, Vermont Yankee, Vermont’s only nuclear power plant which is owned by the Entergy Corporation of Louisiana, has operated unlawfully, without the necessary “certificate of public good” it needs from the state’s Public Service Board (PSB).
On December 4, the New England Coalition on Nuclear Pollution (NEC) filed a complaint with the Vermont Supreme Court, asking the court to issue an injunction that would shut down with Vermont Yankee immediately and keep it shut down until such time as Entergy complies with PSB orders and acquires a valid certificate of public good.
Both Entergy and the State of Vermont filed responses to the NEC motion, seeking its dismissal. On Wednesday, January 16, the Supreme Court has scheduled a half-hour hearing on the motions to dismiss. The docket lists two attorneys for the NEC and 17 for the other side.
If the court dismisses the NEC complaint, that will be the end of this case, although there are other Vermont Yankee cases pending before the PSB, as well and state and federal court. If the court does not dismiss the complaint, it will schedule a hearing on the merits of the NEC claim, and could then shut down Vermont Yankee.
Undisputed: Vermont Yankee Operates Unlawfully
The basis for the shut down, as presented by NEC attorneys Jared Margolis and Brice Simon, is relatively simple and direct in summary:
- In June 2002, the PSB issued an order in connection with the sale of Vermont Yankee to the Entergy Corporation (PSB docket 6545). Â This order is referred to in the pleading as the “Sale Order.”
- Condition 7 of the Sale Order gives Vermont Yankee a certificate of public good “to expire on March 21, 2012.”
- Condition 8 of the sale order says that Vermont Yankee is “prohibited from operating” after March 21, 2012, without either a new or renewed certificate of public good.
- To date, Vermont Yankee does not have either a new or renewed certificate of public good.
Based on these undisputed facts, the NEC argues, Vermont Yankee should be shut down.
Seeing this problem coming, Entergy had asked the PSB to amend the Sale Order to provide a certificate of public good that would allow it to keep Vermont Yankee running lawfully after March 21, 2012. On November 29, 2012, the PSB) handed down a 30-page decision that denied Entergy’s request to modify the 2002 Sale Order, pointing out that any hardship Entergy was suffering was of its own making.
Five days later, the NEC filed for an injunction to shut Yankee down.
In early 2008, Entergy had also filed for renewal of its certificate of public good (docket 7440), but that request is still pending.
Entergy and State Object to Law Enforcement
On timely fashion, Entergy asked the Vermont Supreme Court to dismiss the NEC complain, as did the Vermont Department of Public Service.
The arguments for dismissal included a preference for following the process for appeals laid out in the Vermont Rules of Appellate Procedure, rather that appealing to the Supreme Court in the basis of a Vermont statute, as NEC had done. The statute used by NEC states, in full (30 VSA 15):Â
30 V.S.A. Â§ 15. Decree of public service board; enforcementÂ
Â§ 15. Decree of public service board; enforcement
A party to an order or decree of the public service board or the board itself, or both, may complain to the supreme court for relief against any disobedience of or noncompliance with such order or decree. In such proceedings and upon such notice thereof to the parties as it shall direct, the supreme court shall hear and consider such petition and make such order and decree in the premises by way of writ of mandamus, writ of prohibition, injunction, or otherwise, concerning the enforcement of such order and decree of the public service board as to law and equity shall appertain. (Amended 1959, No. 329 (Adj. Sess.), Â§Â 39(b), eff. March 1, 1961.)Â
The NEC is a party to the Sale Order, which is “an order or decree” of the PSB. Since there is “disobedience or noncompliance” with the Sale Order, the NEC argues that the plain language of the status gives it the right to “complain to the supreme court for relief.”Â The plain language of the statute also appears to require the Supreme Court to act (“shall hear and consider”¦ and make such order and decree”¦.”)
Given the plain language of the statute, the PSB itself has the right to petition the Supreme Court for enforcement of its own orders. In this case it has not sought to enforce the terms of the Sale Order, even though it has ruled that Entergy is violating Condition 8 of that order.
Other Excuses for Not Enforcing PSB Order
Another argument for dismissal of the NEC complaint, as expressed by the state, is that “other reasonable relief is available in pending proceedings before both the Board [PSB] and the [U.S.] Second Circuit Court of appeals.”Â Neither of these actions deals directly with the question raised by NEC of Yankee’s unlawful operation after March 21, 2012, although the PSB is considering whether to grant Yankee a new certificate of public good that would make continued operation legal for another 20 years, and perhaps retroactively.
The state argues that, because the PSB did not seek to enforce its own order in November, when it refused to amend that order (the Sale Order), that means that the NEC should be deprived of its independent right to seek enforcement as allowed by statute. Â Â The PSB has not been asked by any party to enforce the terms of the Sale Order. Â In its response to the state’s motion, the NEC wrote in part:
“What the Department apparently fails to understand is that whether Entergy must abide by the conditions in the sale order is NOT currently under review by the Board [PSB] or the Federal Court.”Â [emphasis added]Â
Once the Vermont Supreme Court has heard arguments from both sides, it will decide whether to dismiss the NEC’s request for enforcement, or to take evidence at a later date and decide what, if anything, it should do about the unlawful operation of Vermont Yankee. Meanwhile, that operation will continue.