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Vermont Testing State’s Rights to Shut Down Nuclear Reactor

On Monday, a lawyer for Vermont urged a three-judge panel of the 2nd U.S. Circuit Court of Appeals in New York to overrule the order of a lower court, which held the state has no right to shut down a nuclear reactor leaking radioactive tritium in its backyard.

The case, Entergy Nuclear Vermont Yankee, LLC et al v. Shumlin et al, 2nd U.S. Circuit Court of Appeals, 12-707 has become a rallying point for testing the powers of state governments versus the federal government when it came to protecting residents from nuclear hazards.

Already other states including New York, Connecticut, Iowa, Maryland, Missouri, New Hampshire, and Utah have filed amici on behalf of Vermont, being equally concerned over the issue.

And here’s the issue.

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Entergy Corp has a nuclear power plant running in Vermont. In January 2010, Entergy itself identified a radioactive tritium leak at the plant. Following news of the leak, the Vermont state Senate voted against a proposal to keep the plant running.

In March 2011, the tsunami in Japan and the disaster at the Fukushima nuclear plant sent concerns soaring, and in the same month, despite Vermont Senate voting against continuing operation of the nuclear plant, the U.S. Nuclear Regulatory Commission approved the license of the plant through 2032.

After obtaining the license from the federal authorities, Entergy Corp sued Vermont seeking an injunction to continue operating. Under ordinary course of events the plant’s certificate was scheduled to expire in March 2012, but by January, U.S. District Judge J. Garvan Murtha ruled in favor of Entergy and granted an injunction blocking the state from shutting down the nuclear reactor.

The judge decided that the two state laws enacted on radiological safety concerns of residents were superseded by the U.S. Atomic Energy Act, and the judge also blocked enforcement of a state regulation that required Entergy to enter power-purchase deals with Vermont retail utilities at below-market rates.

While other states and a number of environmental groups have filed briefs in support of Vermont’s submissions, Entergy is supported by the U.S. Chamber of Commerce and the Nuclear Energy Institute.

On Monday, David Frederick, the attorney representing Vermont in the matter told the court of appeals, “There’s clearly a role for the federal government to play, but states have the final say in whether to allow nuclear energy in their boundaries.”

In opposition, on behalf of Entergy, lawyers argued that the federal Atomic Energy Act empowers the federal government as the sole authority when it comes to the regulation of safety at nuclear plants – and states do not have any say in the matter.

Vermont Testing State’s Rights to Shut Down Nuclear Reactor by

  • Jeff Spangler

    I’m guessing the NRC’s regulatory power preempts the states ability to act, no matter how technically valid their concerns. Just my opinion. We all have one.

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