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Judge Overturns Vermont Nuke Law

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Thursday, January 26, 2012

The state of Vermont has lost a court fight to force Entergy, the owner of the Vermont Yankee nuclear power plant near Brattleboro, to close the plant this March, when its 40-year license expires (the reactor has been in operation since 1972).

The state had sued to enforce a memorandum signed by the Entergy in 2002, when it bought the plant, in which the company promised to shut it down if the state refused to grant a so-called Certificate of Public Good (see "No Injunction for Nuclear Plant," July 28, 2011). In 2010 the state Senate voted against issuing the certificate and called on the company to honor its promise.

Instead, Entergy sued, claiming that the real basis of the state's attempt to shut down the plant had to do with safety, which is the purview of the federal Nuclear Regulatory Commission, rather than with other considerations such as economics. The Nuclear Regulatory Commission, which has given Entergy permission to operate the plant until 2032, did not join in the suit.

The state argued that its long-term energy plan did not include the nuclear plant, and that decreased reliability as components aged will make the plant less capable of providing power as time passes.

But last week U.S. District Judge Garvan Murtha issued a 102-page decision that agreed with Entergy. "This court holds there is overwhelming evidence in the legislative record that Act 160 [the law requiring approval of the Legislature for a nuclear power plant to operate; it contains a clause about the environmental impacts of long-term radioactive waste storage] was grounded in radiological safety concerns and the concomitant desire to empower the Legislature to act on those concerns in deciding the question of Vermont Yankee's continued operation," Murtha wrote.

At press time, Vermont Attorney General William Sorrell was not ready to say whether the state would appeal the decision. Since Vermont is the only state that had a law giving it a say in whether a nuclear plant could continue operating, the case has serious implications for states' rights and the rights of state residents, through their representatives, to act on their concerns and choose their power sources.

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