This is an undated file photo showing an aerial view of the Vermont Yankee nuclear power plant in Vernon, Vt. On Monday, Jan. 14, 2013, a federal appeals court is set to hear oral arguments over whether Vermont's only nuclear plant can continue operating without the approval of state regulators. (AP Photo/Vermont Yankee Corporation, File)
NEW YORK — A dispute between the state of Vermont and a Louisiana-based power company moved to a federal appeals court Monday, when a panel of judges questioned lawyers but did not signal who they’ll side with in the tussle over the future of Vermont’s only nuclear plant.
David C. Frederick, a lawyer for Vermont officials, urged the 2nd U.S. Circuit Court of Appeals to overturn a lower-court judge who said last year that the Vermont Yankee nuclear plant can continue to operate after the Nuclear Regulatory Commission gave it a 20-year extension to operate. The judge, J. Garvan Murtha in Brattleboro federal court, had ruled that the federal government controlled the plant’s fate as it relates to safety issues. Vermont so far has refused to license the plant after a state permit expired last March.
Frederick insisted that the state had important non-safety reasons for seeking a fresh evaluation of the plant, including the “substantial costs” that would be incurred by taxpayers if the plant was decommissioned. Murtha had cited comments about safety that were made by legislators to show the state was primarily concerned with plant safety issues, which he found are solely the responsibility of federal regulators.
“Don’t you have to look at legislative history?” asked U.S. District Judge Paul G. Gardephe, a Manhattan jurist who was sitting on the appeals panel by designation.
Frederick, though, said Murtha had “cherry-picked” certain statements by legislators to support his ruling last January.
Kathleen M. Sullivan, arguing for the plant’s New Orleans-based operator, Entergy Nuclear Operations Inc., said the judge had relied on a “cherry orchard” of comments by legislators showing that safety was the primary concern. She said the state was overreaching.
“It’s given itself the power to interfere with the federal scheme,” she said.
Judge Christopher F. Droney questioned what happens to the plant if the state is found to have mixed motives rather than just safety concerns.
Sullivan answered that the lower-court judge had fully analyzed all concerns in a 101-page ruling.
Frederick said states have the final say in whether nuclear plants can operate in their boundaries, and taxpayers can face huge bills related to a nuclear plant.
The plant, which began operating in 1972, provided as much as a third of the state’s electrical supply before last year, when its output for Vermont residents decreased dramatically after March.
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