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The Statehouse on Vermont Yankee: Democracy in Action or a Lawsuit Waiting to Happen?

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Vermont Yankee’s operating license is up for renewal in 2012, and the state’s elected officials have the unique power to “green light” or “red light” the project. Specifically, it’s up to them whether the Public Service Board can hear the case. Democracy in action, right? Until the first lawsuit.

If the legislature elected to shut down the plant, “It would probably be challenged in federal court and would most likely be considered a federal preemption matter,” said Neil Sheehan, a Nuclear Regulatory Commission spokesman. “That is an issue of whether the state is seeking to preempt authority granted to the NRC by Congress.”

Under the Atomic Energy Act, Congress granted the NRC the authority to grant, deny or revoke nuclear-power plant licenses and license extensions. While the states can play a role in examining a plant’s economic and environmental impact, as well as its reliability, they are not allowed to make judgments based on safety concerns.

But when Entergy bought Vermont Yankee, it signed a document expressly stating it wouldn’t challenge the authority of the state in the matter of relicensing. Some VY opponents say this agreement extends to the legislature, which sets energy policy.

Rep. Tony Klein (D-East Montpelier) said he has discussed the issue with several attorneys and believes Vermont is on solid legal footing.

Others are not so sure. Vermont Law School Professor Cheryl Hanna says Entergy could have a strong case against the legislature. That’s because Vermont is the only state whose lawmakers have given themselves the authority to weigh in on this debate. Entergy could argue in court that a political body does not have the scientific background or expertise to make such a decision, says Hanna.

Gov. Jim Douglas has been making similar arguments for months: The legislature should let the “experts” decide Yankee’s case.

Entergy’s legal outcome would largely depend on who first presides over the case in Vermont, Hanna added. Judge William Sessions has a strong record in favor of allowing states to carve out regulatory niches, but newly appointed judge Christina Reiss has no such track record. Beyond Vermont, Hanna said, it’s not clear how well Entergy would fare.

The U.S. Supreme Court has shown an interest in taking federal preemption cases, said Hanna, and, despite its conservative leanings, it has sided with consumers. But, given the strong national interest in expanding the use of nuclear power, the court may frown on setting a precedent for the establishment of 50 separate regulatory schemes to oversee and license new and existing nukes.

Has Entergy actually threatened to sue? Would it take Vermont to court if the state legislature denied VY’s chance at a license to operate for another 20 years? Entergy won’t say.

“That’s really too hypothetical to address at this point,” said Entergy VY spokesman Rob Williams. If the legislature hasn’t ruled on relicensing by April 2011, the date when Entergy needs a decision, his answer may be more concrete.

In the meantime, lawmakers are keenly aware of this legal issue related to Yankee, and none more so than Klein and Sen. Ginny Lyons — chairs of the House and Senate Natural Resources and Energy committees, respectively. Neither wants the legislature to end up as a defendant in federal court.

So the word “reliability” trumps the term “safety” in each and every VY-related discussion. For example, state nuclear engineer Uldis Vanags recently testified before Klein on the subject of VY’s leaking underground pipes. Whenever lawmakers, or Vanags, got into the danger zone, Klein would correct them with a wry smile, saying the legislature is only interested in how those pipes could affect the reliability of the plant were it to be relicensed.

“We constantly remind the folks here that safety is in the purview of the NRC, and the NRC only,” said Klein.