Entergy Asks Court To Dismiss Attempt To Shut Down Yankee

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Vermont is keeping Entergy’s lawyers busy.

Entergy is the company that owns Vermont Yankee. After a hearing in New York City on Monday, the company and its opponents were back in court on Wednesday in a continuing legal face-off over the future of the state’s only nuclear plant.

The venue this time was the Vermont Supreme Court.

Entergy wants the court to throw out an attempt by an anti-nuclear group to shut down the plant.

The New England Coalition has asked the high court to rule that Entergy has disobeyed a June 2002 Public Service Board order. That order says if Entergy didn’t have a new state permit – called a certificate of public good – by March 2012 – it would have to cease operations. The PSB has held hearings on a new permit application, but it’s also said in several recent orders that Entergy is operating without a valid permit.

Entergy’s lawyer Kathleen Sullivan says the plant does have permission to operate. She called the court’s attention to a state law – section 814B. That statute says if the company has filed for a new permit, it can continue to operate under its old one.

"We want you to dismiss the complaint for failure to state a claim on the merits because we think you should rule that 814B does apply to the June 13 (2002) order of the PSB and does allow us to continue operating Vermont Yankee," she said.

And Sullivan told the court that federal judge J. Garvan Murtha last year blocked the governor, the state attorney general and the Public Service Board from shutting down Yankee.

That drew a skeptical response from Justice John Dooley. He questioned if the federal court injunction applied to his court.

"I read this and I read this in your filing and in Judge Murtha’s order. … And I must admit I’m wondering what this has to do with me," Dooley said. "The attorney general doesn’t represent certainly this court. If the attorney general has pulled the wool over the eyes of the federal court, than that’s between the attorney general and the federal judge."

New England Coalition lawyer Brice Simon said the issues are clear. The Public Service Board has said that Entergy has disobeyed the board’s orders. He said the coalition, as a separate party, can go to the Supreme Court and ask for relief.

"The Public Service Board has already issued multiple orders finding that Entergy is in violation of the sale order," he said. "The sale order exists, that’s an order to stop operating March 21, 2012."

Retired Justice Denise Johnson, who was hearing this case, interrupted Simon at that point.

"But they didn’t order them to shutdown, and that sort of concerns me," she said.

Johnson peppered both sides with questions. She asked Simon why the coalition brought this case to the Supreme Court, and not the Public Service Board, which covers utility issues.

"Are you saying the Public Service Board doesn’t have authority to issue this order?" she asked.

Simon said the coalition went to the Supreme Court to get a definitive answer on whether Yankee can operate.

It’s likely the high court will rule fairly quickly on Entergy’s motion to dismiss.

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