Federal judge refuses to intervene in Vermont Yankee case

Friday January 11, 2013

BRATTLEBORO -- A federal district court judge refused a request by the owner of Vermont Yankee to force an anti-nuclear organization to withdraw a petition, submitted to the Vermont Supreme Court, asking for the nuclear power plant's closure.

In a document issued late Wednesday, Judge J. Garvan Murtha ruled the New England Coalition may continue to seek enforcement of a Vermont Public Service Board order that requires the closure of Yankee.

NEC is requesting the Supreme Court enforce a condition in the 2002 agreement authorizing the sale of Yankee to Entergy that requires the plant to have a new certificate of public good to continue operation beyond March 21, 2012.

"This latest attempt by Entergy to deny the ability of the state to enforce its orders is indicative of the lengths Entergy will go to avoid having to comply with the commitments it has made to Vermont," stated Jared Margolis, who, with Brice Simon, is representing NEC before the Vermont Supreme Court. "NEC is optimistic that the Vermont Supreme Court will take appropriate action and enjoin further operation of the plant pending the Board's review of Entergy's CPG application."

"We hope this federal rebuff will serve Entergy as an inoculation of anti-arrogance serum, but we suspect that booster shots will be needed before Vermont Yankee is history and we can move to the details of decommissioning," stated NEC advisor Raymond Shadis in a press release announcing Murtha's decision.

In January 2012, Murtha, from the Federal District Court for the

District of Vermont, issued a decision prohibiting the state from

closing Yankee after Entergy brought suit alleging actions the state Legislature took to prevent the PSB from issuing a new certificate were preempted by federal authority. Namely, concluded Murtha, the Legislature had considered safety in its deliberations, which is under the sole purview of the Nuclear Regulatory Commission.

Murtha also forbid the state from closing the plant if a below-market power purchase agreement with Vermont utilities was not reached and if the cumulative total amount of spent fuel stored at the plant exceeds "the amount derived from the operation of the facility up to, but not beyond, March 21, 2012."

However, Murtha did not rule on Condition 8 of the sales agreement, which requires a new certificate for continued operation. It is Condition 8 that NEC is asking the Supreme Court to enforce.

In addition to filing a motion to dismiss in the federal court, Entergy has also filed a motion with the Vermont Supreme Court.

Arguments on NEC's petition for closure are scheduled for Jan. 16.

Vermont statutes provide that a party to an order or decree of the public service board "may complain to the supreme court for relief against any disobedience of or noncompliance with such order or decree." NEC was a party to the sales agreement, therefore it has standing to petition for enforcement of Condition 8.

In its motion to the federal district court, Entergy had argued that NEC should not be allowed an "end-run" around the court's judgment, which prevents the state from taking action to shut down the plant for failure to obtain legislative approval for a CPG for continued operation.

It also asked the court to consider an opinion issued by the Vermont Attorney General's Office that stated Yankee would not be shut down while the PSB is considering Entergy's application for a CPG.

When Entergy filed its lawsuit against the state in 2011, NEC asked Murtha for party status, but was denied. Instead, NEC was allowed to file a "friend of the court" brief.

In its motion to Murtha asking him to force NEC to withdraw its

complaint before the Supreme Court, Entergy asserted "nonparty NEC is within the reach of this Court's authority because NEC is ‘in active concert or participation with' (Vermont) and had ‘actual notice' of the injunction."

But, wrote Murtha in his decision issued Wednesday, "In general, a court may not issue an order against a nonparty."

In addition, Entergy has not "sufficiently demonstrated NEC is acting ‘in active concert or participation with' any Defendant to ‘nullify a decree' of this Court.

"In fact, the state, through the Vermont Department of Public Service, has opposed the relief requested by NEC in the Vermont Supreme Court. NEC is not a state agency, is not represented by the state, and is not subject to the state's control -- as demonstrated by the state's opposition to its current course of action."

Entergy also attempted to invoke a federal statute to force NEC to withdraw its complaint. The statute allows a federal court to stay a proceeding in a state court "where necessary in aid of its jurisdiction, or to protect or effectuate its judgments."

However, noted Murtha, Entergy did not specifically ask the court to grant an injunction staying a state court proceeding.

"In the absence of an order requiring the shut down of the plant ... and given the Attorney General's representation, the Court again declines to enter an injunction as broad as that now requested by Plaintiffs."

Margolis told the Reformer that if the Supreme Court does grant NEC's request and orders the enforcement of Condition 8, Entergy will probably appeal to Murtha.

"Entergy is going to run to the district court and claim preemption, even when its claim is invalid," said Margolis.

And even if the Supreme Court does order enforcement of Condition 8, he doesn't believe Entergy will comply.

"They will very likely seek an injunction if the Supreme Court agrees with us," he said. "Entergy doesn't appear to have any respect for the jurisdiction of Vermont."

If the Supreme Court doesn't agree with NEC's petition, said Margolis, NEC's alternative is to ask the PSB to enforce the condition.


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