Gov. Peter Shumlin's coercion scheme

Entergy, the owner of the Vermont Yankee nuclear plant, and the state are now locked in judicial combat in Federal court.

In 2002, when buying Vermont Yankee from its utility owners, Entergy agreed that it would seek a new Certificate of Public Good from the Public Service Board if it sought federal approval to continue to produce power after the plant's license expiration date (March 21, 2012.) It also agreed not to attempt to bypass PSB jurisdiction by invoking Federal preemption-the doctrine that a state cannot regulate federally licensed economic activity serving an interstate market in a way that contravenes Federal regulatory authority.

Four years after this agreement, the Vermont general assembly passed a bill (Act 160), opposed by Entergy, that required general assembly approval before the PSB could issue a final order on Entergy's application for a new certificate. This March Entergy received an extended 20 year license to continue producing power from Vermont Yankee, but Vermont's legislative leadership refused even a vote on approving Yankee's continued operation.

So Entergy went to Federal court seeking a declaratory judgment that by approving Yankee's continued operation for twenty years, the Federal government has preempted state regulation of nuclear plant operation. It also asks the court to find that the legislature's political interposition, ardently supported by Senator and now Gov. Peter Shumlin, constitutes a deliberate scheme to extract money from Entergy for the benefit of Vermont utilities and ratepayers.

On the first point, Attorney General Sorrell, defending the state, holds up a 1983 Supreme Court case, PG&E v. State. In that case a California statute required legislative approval of a proposed but unbuilt nuclear plant, based on the applicant's satisfying a state commission that spent fuel rods would be acceptably handled. The Court upheld the statute.

But in doing so, the Court held that "the statute does not seek to regulate the construction or operation of a nuclear power plant." Clearly the Vermont statute seeks to completely deny the operation of an existing nuclear power plant that has given Vermont businesses, farms, and homeowners low cost baseload electricity for 39 years.

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