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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