Vermont Yankee: A Nuclear Battle Over States’ Rights

There’s no end in sight to Vermont’s long-running legal struggle to shutter an aging power plant.

John Raymond

Demonstrators gather on March 22 in Brattleboro, Vt., to demand that the Entergy Corporation immediately cease operations there. (Photo by James Ennis via Flickr)

It was a 40th birth­day bash attend­ed by more than 1,000 peo­ple in three states – but the atten­dees came to demon­strate, not cel­e­brate. The Ver­mont Yan­kee nuclear pow­er plant, a poster child for anti-nuclear protests through­out its four-decade his­to­ry, was the tar­get. Only the day before, on March 21, its state per­mit to oper­ate expired and the leg­is­la­ture vot­ed to shut it down. But the pow­er plant was still operating. 

In a controversial decision that raises issues of states' rights to address nuclear issues within their borders, a judge ruled that Vermont's laws were pre-empted by federal law.

The protest brought demon­stra­tors (“Hell no, we won’t glow”) to Ver­mont Yankee’s own­er, the Enter­gy Cor­po­ra­tion, and its offices in Brat­tle­boro, Vt., White Plains, N.Y., and cor­po­rate head­quar­ters in New Orleans. There, they put up a yel­low crime tape out­side the build­ing and went inside to demand an inter­view with CEO J. Wayne Leonard.

In a state­ment, Enter­gy said it was busi­ness as usu­al for our employ­ees, who are focused on pro­vid­ing safe, clean and afford­able electricity.”

Vermont’s legal bat­tle to shut down the Yan­kee pow­er plant is on the radar screen in states through­out the coun­try where local com­mu­ni­ties are fight­ing the reli­cens­ing of aging nuclear sites. Cit­i­zens are con­cerned by ongo­ing radioac­tive leaks that con­t­a­m­i­nate ground­wa­ter, shut­downs result­ing from degrad­ing sys­tems and lax main­te­nance, and fears that cor­po­rate own­ers won’t pay the near $1 bil­lion price tag to decom­mis­sion plants.

Entergy’s Ver­mont Yan­kee plant in Ver­non, on the Con­necti­cut Riv­er, its Indi­an Point plant on the Hud­son Riv­er out­side New York City, and its Pil­grim nuclear plant on Cape Cod Bay in Ply­mouth, Mass., are all at the cen­ter of fierce bat­tles aimed at shut­ting the plants down. But in recent months, the Ver­mont Yan­kee bat­tle has tak­en cen­ter stage.

In Jan­u­ary, a fed­er­al dis­trict judge upheld Entergy’s chal­lenge to Ver­mont laws adopt­ed in 2006 (and agreed to by Yan­kee) that give the state leg­is­la­ture veto pow­er over approv­ing a fed­er­al license exten­sion for the Yan­kee plant. In 2010, the Ver­mont Sen­ate over­whelm­ing­ly (26 to 4) reject­ed allow­ing the plant to oper­ate beyond its 40-year fed­er­al oper­at­ing license.

Last year, despite the state’s oppo­si­tion, the Nuclear Reg­u­la­to­ry Com­mis­sion (NRC) approved a 20-year license exten­sion – but NRC chair­man Gre­go­ry Jaz­co said he would not inter­fere with Ver­mont leg­is­la­tors’ deci­sion. A month lat­er, Enter­gy took Ver­mont to court.

In a con­tro­ver­sial deci­sion that rais­es issues of states’ rights to address nuclear issues with­in their bor­ders, fed­er­al judge Charles Murtha ruled that Vermont’s laws were pre-empt­ed by fed­er­al law – the Atom­ic Ener­gy Act (1954) – that puts nuclear safe­ty issues under the sole juris­dic­tion of the Nuclear Reg­u­la­to­ry Commission.

Murtha said the leg­isla­tive record showed that safe­ty was the state’s main con­cern in pass­ing the leg­is­la­tion. The record con­tained instances almost too numer­ous to count” that reveal leg­is­la­tors’ radi­o­log­i­cal safe­ty moti­va­tions and reflect their wish to empow­er the leg­is­la­ture to address their con­stituents’ fear of radi­o­log­i­cal risk,” accord­ing to the judge’s ruling.

Ver­mont offi­cials, well aware of fed­er­al pre-emp­tion on nuclear safe­ty issues, have stat­ed that the leg­is­la­tion – which makes no ref­er­ence to safe­ty” – was adopt­ed because of con­cerns about the reli­a­bil­i­ty of the Yan­kee plant going for­ward. But they’ve also said that the plant does not fit into the state’s long-term plan­ning for sus­tain­able ener­gy or serve the pub­lic good.

It is incon­ceiv­able to me that Enter­gy can force Ver­mont to allow con­tin­ued oper­a­tion of Ver­mont Yan­kee, an aging and prob­lem-plagued nuclear plant, when the peo­ple of Ver­mont want to move aggres­sive­ly to ener­gy effi­cien­cy and sus­tain­able ener­gy,” Ver­mont Sen. Bernie Sanders said in January.

Gov. Peter Shum­lin, who took office in Jan­u­ary 2011, cam­paigned on shut­ting the plant down. Enter­gy has not been a trust­wor­thy part­ner with the state of Ver­mont,” Shum­lin said in a state­ment after Murtha’s rul­ing. I con­tin­ue to believe that it is in Vermont’s best inter­est to retire the plant.

It’s rare for a state to act this way’

Both Ver­mont and Enter­gy have appealed Murtha’s rul­ing to the 2nd U.S. Court of Appeals in New York. Enter­gy is chal­leng­ing Murtha’s uphold­ing of the role of the Ver­mont Pub­lic Ser­vice Com­mis­sion, which must issue a state per­mit for con­tin­ued oper­a­tion of the plant. The cur­rent per­mit is now expired; hear­ings on a new per­mit are entan­gled in legal proceedings.

The vote in 2010 to shut the plant came in the wake of a few well-pub­li­cized inci­dents: the col­lapse of a cool­ing tow­er in 2009 and a tri­tium leak the fol­low­ing year. The leak cre­at­ed an under­ground plume that reached the Con­necti­cut Riv­er where water con­tain­ing radioac­tive tri­tium was found in sam­ples tak­en in August and Novem­ber last year.

The leak also revealed that plant offi­cials had ear­li­er made mis­state­ments” under oath when they tes­ti­fied before state boards that the plant had no under­ground pipes that car­ried radioac­tive efflu­ent. The leak proved otherwise.

Con­tribut­ing to the no-vote were sus­pi­cions aroused when Enter­gy, in the months fol­low­ing the col­lapse of the cool­ing tow­er, pro­posed spin­ning off Ver­mont Yan­kee and five of its oth­er aging plants, includ­ing Indi­an Point and Pil­grim, into a new and high­ly lever­aged hold­ing com­pa­ny. It would have had no assets except the six plants, which all required heavy invest­ment. The NRC approved the plan, but it didn’t give the reg­u­la­to­ry approval it need­ed in New York, and Enter­gy sub­se­quent­ly dropped it.

Leg­is­la­tors and oppo­nents saw the pro­pos­al as a shell game, an effort to avoid the lia­bil­i­ty of pay­ing for plant decom­mis­sion­ing by cre­at­ing an under-fund­ed and debt-rid­den new enti­ty, keep­ing the more valu­able assets with Enter­gy,” writes Richard Watts, an assis­tant research pro­fes­sor at the Uni­ver­si­ty of Ver­mont, in a new book, Pub­lic Melt­down: The Sto­ry of the Ver­mont Yan­kee Nuclear Pow­er Plant.

In an inter­view, Watts said Vermont’s vote to shut down the Yan­kee plant was an uncom­mon action. It’s rare for a state to act this way,” he said, not­ing that the last time a sim­i­lar action occurred was in 1989, when a suc­cess­ful state bal­lot ini­tia­tive shut down the Ran­cho Seco nuclear plant near Sacra­men­to. That bal­lot dri­ve was led Ben Davis, who is cur­rent­ly lead­ing a new ini­tia­tive under­way in Cal­i­for­nia to shut down the San Onofre and Dia­blo Canyon nuclear plants.

The big ques­tion raised by the Ver­mont Yan­kee bat­tle, Watts says, is: What is the role of states in over­see­ing the nuclear pow­er plants with­in their borders?

Tra­di­tion­al­ly, states have had over­sight on a whole range of issues now at stake in this case – eco­nom­ic ben­e­fits, the role of a nuclear plant in a state’s ener­gy plan­ning, waste dis­pos­al, land use and water dis­charge issues. Those are all at issue here,” he said.

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