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.
By John Raymond April 10, 2012
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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.
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
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
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
"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
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
"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
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