MONTPELIER — The Vermont Supreme Court has dismissed a petition by the New England Coalition to shut down the Vermont Yankee nuclear plant.
The high court, in a decision dated Monday, said the anti-nuclear group hadn’t exhausted its administrative options, and also said the issue raised by the coalition was better addressed in a parallel case filed by Entergy Nuclear in January. That case is pending before the Vermont Supreme Court.
NEC had asked the Supreme Court to issue an injunction against Vermont Yankee to keep the plant from operating, saying the plant did not have a valid state permit to operate beyond March 2012.
But the high court seemed to invite the coalition to pursue other legal options.
“NEC has not requested, nor has the (Public Service) Board issued, an order directing Entergy to cease operating Vermont Yankee on the grounds advanced by the NEC here,” four justices wrote. “Nor is it established that Board enforcement of Condition 8, if applied for, would necessarily be covered by the federal injunction enjoing enforcement of Act 160.”
Condition 8 dates back to the 2002 sale of Vermont Yankee, when Entergy agreed it wouldn’t operate Vermont Yankee beyond March 21, 2012 unless it had a valid state certificate of public good.
“I think the court was searching for a reason not to have to deal with this, at this point,” said Raymond Shadis, senior technical adviser for the coalition, which has its headquarters in Brattleboro.
Jared Margolis, an attorney for NEC, said the decision was “disappointing but not unexpected.”
When Entergy filed its appeal of the Public Service Board decision dismissing its 2009 petition for a new state license in January, a month after the coalition’s petition, Margolis said he suspected the two would end up joined in one way or another.
“But the important thing is the issue doesn’t go away,” said Margolis.
The Supreme Court still has to decide whether Entergy is violating a condition set by the PSB in 2002, when Entergy purchased Vermont Yankee from a group of New England utilities.
James Sinclair, a spokesman for Entergy Nuclear, said the company was pleased with the decision but declined further comment.
Patrick Parenteau, a law professor at Vermont Law School who has been following the legal fights surrounding Vermont Yankee, said he was most surprised by the high court’s assertion that a decision by U.S. District Court Judge J. Garvan Murtha — granting an injunction against the state’s law that gives the Vermont Legislature a key say over Yankee’s future — did not apply to this issue.
“Most remarkable to me was the comment that, should the board decide to enforce Condition 8 it would not necessarily be covered by Judge Murtha’s injunction of Act 160,” Parenteau wrote in an email.
“Also interesting was the comment that the more appropriate forum for reviewing the Board’s determination that Entergy was in violation of Condition 8 was Entergy’s pending appeal of the Board’s decision to open a new docket instead of making a decision on the old docket,” he added. “Curiouser and curiouser.”
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