Furthermore, since the plant is a merchant generator, no longer owned by Vermont utilities, the traditional concerns of state regulators no longer apply.
Of particular interest is Entergy's charge of political coercion.
From the brief:
Vermont officials have further stated that they might condition any favorable exercise of the state's supposed licensing authority upon the wholesale sale of power generated by the Vermont Yankee Station to Vermont retail utilities at preferential rates compared to the rates charged by non-Vermont retail utilities.
This condition coerces Plaintiff [Entergy] to enter into below market power purchase agreements with Vermont's retail utilities that will effectively result in [Vermont Yankee] and out of state consumers subsidizing the electric bills of Vermont's consumers.
The brief supports that charge with several Shumlin statements, such as this one in January 2009, when he was Senate President: "There's no way we're going to vote to relicense the plant unless Vermonters are getting a great deal."
The court may well reach a conclusion favorable to Entergy's preemption claim. If it does so, the Court may not choose to consider Entergy's claim that Act 160's political coercion of electricity generators violates the Federal Power Act. But Vermonters need to take a hard, clear look at the game that certain politicians, notably Peter Shumlin, have been playing.
That game comes down to a political ultimatum to Entergy: "unless you agree to sell power to Vermont utilities at a sufficiently below-market price, we'll block you from obtaining the certificate you need to stay in business in this state."
This practice of selling valuable government permission has the rotten smell of every political machine from Tammany Hall to Boss Tweed to modern day Chicago to any number of today's despotic Third World regimes. As the brief argues, the statements of Peter Shumlin and the general assembly's politicization of the regulatory process have irremediably tainted the authority that Shumlin and Sorrell claim the state has to shut down Vermont Yankee.
Moreover, the growing perception that the politicians now leading Vermont are practicing extortion-for their political advantage, if not for personal under the table payments-can only become an irremediable taint on the integrity of our state, and an increasingly troublesome obstacle to Vermont's future economic prospects.
John McClaughry is vice president of the Ethan Allen Institute (www.ethanallen.org).