Thursday, April 11, 2013

The Nuclear Option

In re Investigation into General Order 45, 2013 VT 24 (mem.)

File this one under yet another attempt to shut down Vermont Yankee.

Petitioner is a coalition of anti-nuclear activists seeking closure of Vermont’s infamous nuclear facility on the banks of the Connecticut. 

As you may have heard, Vermont Yankee and its owner, Entergy, are not exactly getting along with the State of Vermont.  Last year, Entergy sued the State in federal court and won an injunction that prevented the State or anyone else from shutting down the plant based on the Vermont legislature’s vote to shut it down.  That decision is on appeal, but the district court’s broadly worded injunction remains in place.

This ruling, though, did not relieve Entergy from the obligation to seek a new Certificate of Public Good from the Public Service Board, and Entergy has dutifully applied for the renewal, or as the State calls it—Round 2. 

So here is the issue in today’s case.  Vermont Yankee’s old certificate of public good expired in 2012.  Its current application is in process.  This means the plant is operating without a certificate.  Normally, that is not a problem.  When a license holder applies for a new license, it essentially extends the old permit while the review is being conducted.  That’s the law under the Vermont Administrative Procedures Act (VAPA).

But in this case, there is a separate contract between Entergy and the State stemming from the former’s purchase of Vermont Yankee.  Under the terms of the contract, Entergy agreed not to operate after its 2012 license expired unless it was issued a new or renewed certificate.  The Public Service Board has since ruled that this contract provision was part of the sale and thus is not subject to the VAPA extension provisions.

This brings us to the Petitioner’s motion, which is addressed directly to the SCOV.  Basically, Petitioner asks the SCOV to issue an injunction ordering Entergy to shut down Vermont Yankee until it obtains a new or renewed Certificate of Public Good in compliance with the purchase agreement. 

The SCOV declines.  It does so for a number of equitable reasons that boil down to an unwillingness to grant extraordinary relief based on an incomplete record and in a docket that is still being developed.  More specifically, the SCOV cites the following:

  • Petitioner has not asked the PSB for this relief and thus has not exhausted its administrative remedies.

  • Petitioner has further failed to show that it has no legal remedy or that it will suffer irreparable harm if Entergy is allowed to continue.

  • The SCOV is unwilling to delve into the issues raised by Petitioner because they are also the basis of a pending appeal, and the SCOV would rather address them there.

With that, the SCOV denies the motion and steps off the opinion.  Interestingly, the SCOV keeps its analysis and decision tight.  Read and re-read the decision.  It is fairly tight lipped and does not tip its hand to either side.  The SCOV seems to accept the fact that the purchase agreement has a separate requirement to shut down between licenses, but it does not indicate how strongly it believes this argument or whether such a provision entitles the State and interested parties to relief.  It is easy to see where either side could read too much into the decision and effectively misread where the SCOV is headed in the larger case. 

For today, we will simply have to accept the fact that the SCOV is unwilling to grant extraordinary relief on the present record.  Nothing more, nothing less.

In the meantime, it appears that Entergy will be allowed to keep a light on for you.

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