BRATTLEBORO, Vt. — A federal judge is about to be asked to take a first crack at this question: In early 21st-century America, can a small state tell an $11.2 billion corporation to pack up its nuclear plant and go home?
On Monday morning, in a stately federal courtroom upstairs from a U.S. Post Office – in a town still recovering from the floods two weeks ago of Hurricane Irene's remnants – a high-powered Entergy Corp. legal team will square off against the Vermont attorney general's office with that question in the balance.
Judge J. Garvan Murtha will hear opening arguments in what is expected to be a three-day trial. At issue is whether the Entergy-owned Vermont Yankee nuclear plant, just a few miles south of the courtroom in neighboring Vernon, should be allowed to operate past next March 21, when its initial 40-year license expires.
The U.S. Nuclear Regulatory Commission has said yes. Just 10 days after an earthquake and tsunami triggered meltdowns at the Fukushima plant – reactors of the same design and about the same age as Vermont Yankee – the NRC said Vermont's lone nuclear station had passed its review and was fit for a 20-year license extension, lasting until 2032.
The state of Vermont has said no. The state passed a law in 2006 saying that before a nuclear plant could get permission from regulators to keep operating, both houses of the Legislature had to approve. The state Senate voted 26-4 in 2010 against continued operation.
New Orleans-based Entergy filed suit in April, saying the state is pre-empted by the federal Atomic Energy Act from trying to shut Vermont Yankee down. Whichever side loses is almost certain to appeal, so a resolution could take years.
The judge in July denied Entergy's request for a preliminary injunction allowing Vermont Yankee to continue operating while the lawsuit works its way through the courts. But in a nod to the company's plea for a quick answer about the plant's future, he set an unusually early date for the full trial.
It's a case that's drawing national attention both from supporters and critics of nuclear power.
"We are paying attention to it because we are concerned about our 650 energy industry colleagues at the site," said Tom Kauffman, spokesman for the industry group Nuclear Energy Institute, of the job losses if the plant closes. "We are also concerned about the citizens of Vermont" and their need for a large source of low-carbon electrical generation, he said.
Diane Curran, a Washington-based lawyer who has represented several anti-nuclear groups, said more states should be exercising more oversight over nuclear power plants in this post-Fukushima world.
"To me there's an overarching question about whether in today's era there should be any debate about whether states should have a lot more control about nuclear plants within their borders," she said.
A big question hanging over the case is why Vermont wants its only reactor shut down. Entergy has charged that Vermont's main concern is about nuclear safety – something a 1983 U.S. Supreme Court decision said was solely the province of the NRC
Vermont's lawyers denied during the preliminary injunction hearings that the issue was safety – instead they said it was "reliability" – will the plant operate well and provide a stable supply of electricity to the state's consumers?
But others see two problems with that. First, the plant is reliable by industry standards, with a "capacity factor," above the industry average, Kaufmann said. Second, Vermont Yankee and the state's electric utilities have been unable to agree on a contract for the utilities to buy power from the plant after next March. If all the power is sold out of state, as is likely if the plant keeps operating, Vermont's concern about reliability would be rendered moot.
Overall, the state hasn't provided a clear reason for shutting the plant down, said Patrick Parenteau, a professor at the Vermont Law School and former state environmental commissioner. "That may be the state's chief vulnerability" in the case, he said. The judge is likely "looking for a real crisp explanation that he can say, `I may not agree with it, but I'll defer to it, I'll accept it."
Vermont has always been closely divided on the question of nuclear power. Steve Terry, a former Vermont journalist who went on to serve as vice president at Green Mountain Power Corp., said it was a close vote in the state House in 1966 that decided on a nuclear plant versus a huge deal to import Canadian power. "It's been a long-time, persistent issue," he said.
In recent years, nuclear opponents have been in the ascendancy, now occupying key spots in state government. Gov. Peter Shumlin, when he was Senate president, orchestrated the vote to close the plant a month after it was revealed that radioactive tritium was leaking into soil and water around the reactor and that plant officials had made misstatements by denying to the state that the plant had underground pipes that carried tritium.
If the real reason that the state wants to close Vermont Yankee is that the anti-nukers are now in charge, observers say the judge may end up having to rule on whether that decides the matter.