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Entergy Nuclear Vermont Yankee, LLC v. Shumlin

ELR Citation: 42 ELR 20029
Nos. 11-cv-99, (D. Vt., 01/19/2012) (Murtha, J.)

A district court issued a permanent injunction barring the state of Vermont from bringing an enforcement action, or taking other action, to compel the Vermont Yankee nuclear power plant to shut down after its license expires on March 21, 2012, if it fails to obtain legislative approval to continue operations pursuant to state law. In 2006, the state legislature enacted Act 160, which states that the owner of the plant may not operate the nuclear reactor after its license expires in 2012 without "the explicit approval of the General Assembly." Act 160, however, is preempted by the Atomic Energy Act. There is overwhelming evidence in the legislative record that Act 160 was grounded in radiological safety concerns and in the desire to empower the legislature to act on those concerns in deciding the plant's continued operation. Because consideration of radiological public health in re-licensing decisions is the exclusive province of the NRC, Act 160 is preempted by the Atomic Energy Act. Similarly, the Atomic Energy Act preempts a provision in Act 74, which requires affirmative legislative approval for storage of spent nuclear fuel after March 21, 2012. Again, the provision was enacted with radiological safety purposes in mind, and it has the effect of giving the state legislature the unreviewable power to prohibit storage of fuel. The court, therefore, issued a permanent injunction barring the state from enforcing these laws to compel the plant to shut down. In addition, the court permanently enjoined the state, as prohibited by the dormant Commerce Clause, from conditioning continued operation of the plant on the existence of a below-wholesale-market power purchase agreement between the plant and Vermont utilities, or from requiring the plant to sell power to Vermont utilities at rates below those available to wholesale customers in other states.