DOJ Won't Intervene in Entergy Suit

By:  By Josh Stilts
Brattleboro Reformer

BRATTLEBORO - Sen. Bernie Sanders, I-Vt., said he learned Thursday that the U.S. Department of Justice has no plans to intervene in Entergy's lawsuit against the state of Vermont at this time.

Earlier this month, Sanders, a member of the U.S. Senate committee that oversees the federal Nuclear Regulatory Commission, criticized the NRC after learning that commissioners secretly voted 3-2 to urge the Department of Justice to intervene in the case. "If Vermont chooses an energy future that does not include a 40year-old, problem-ridden nuclear power plant and that emphasizes energy efficiency and sustainable energy, it is certainly our right and the federal government has no role to play in that decision," Sanders said.

Sanders said he urged Attorney General Eric Holder to stay out of the suit filed in federal court in Brattleboro by Entergy, which owns and operates the Vermont Yankee nuclear power plant in Vernon.

"While I recognize that it is the responsibility of the Department of Justice to monitor developments in all ongoing litigation, I am pleased that they have no plans to intervene and I am confident that the Department will see no reason to intervene in the future," he said.

In April, Entergy, a $14 billion dollar corporation that operates 12 nuclear power facilities, filed a lawsuit against the state claiming its attempt to forbid continued operation of the plant past March 21, 2012, infringes on the federal jurisdiction of the Nuclear Regulatory Commission.

Entergy is seeking a preliminary injunction which would prevent the state of Vermont from shutting the plant down until a final decision of the lawsuit has been resolved.

Last week, in front of Judge J. Garvan Murtha, Kathleen Sullivan, one of Entergy's attorneys, said Vermont's Assistant Attorney Generals failed to prove that Acts 74, 160 and 189 weren't motivated by radiological safety concerns, something that's under the sole jurisdiction of the NRC.

Sullivan added that the Legislature's use of the terms "public health" and "reliability" were nothing more than "code words that mask the Legislature's desire to govern radiological safety."

In 2002, when Entergy purchased the plant, it signed a memorandum of understanding with Vermont that included a number of conditions Entergy had to agree to prior to the sale. Entergy is arguing that two of those conditions - that the PSB has jurisdiction under current law to grant or deny approval of the plant's continued operation and that Entergy waive any claim it might have to federal preemption of any actions taken by the board - are no longer valid due to two actions that occurred since the memorandum of understanding was signed.

The first, that the Legislature passed Act 160 in 2006, giving itself the authority to forbid the PSB from issuing a certificate of public good; and the second, that the Legislature's discussion whether to give permission to the PSB to issue the CPG was based on an area of review that is under the sole jurisdiction of the NRC - safety of the plant.

"Last year, by a strong 26-4 bipartisan vote, the Vermont state Senate voted not to renew the license for the 40-year-old, problem plagued Vermont Yankee nuclear power plant," Sanders told the Reformer. "Both federal law as well as an agreement struck between the state and Entergy, when that company purchased Vermont Yankee in 2002, makes it abundantly clear that the state of Vermont has the right to shut that plant down."

Entergy's lawsuit against the state isn't about safety, it's about the state's economy and what the future of its energy solutions should be.

"It would be absolutely wrong and inappropriate for the DOJ to intervene in this case on the side of Entergy," he said. " This is not their area, this isn't a question about safety. This is about the energy future of Vermont."

Sanders said he wanted to expressly thank Sen. Harry Reid, D-Nev., for his strong support for Vermont.

"The Majority Leader is clearly in our corner on this issue and he has agreed to do everything he can to help me in this effort," Sanders said.

Gov. Peter Shumlin, in a press release about the DOJ's announcement that it would not intervene, thanked Sanders for his continued hard work.

"Bernie Sanders is an extraordinary champion of Vermonters and our state's best interests, and I am very grateful for his efforts here," Shumlin wrote. "I am gratified to hear that Attorney General Holder and the Department of Justice have declined to intervene in this case. That position is consistent with the many, many statements from the Nuclear Regulatory Commission confirming that states have their own jurisdiction over matters that don't relate to radiological safety. I believe strongly that our state has proper authority over Vermont Yankee's continued operation, and that Entergy Louisiana is not above the law and should have kept the promises it made to Vermonters to comply with our laws."

A spokesperson for the Department of Justice couldn't be reached for comment.