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US appeals court blocks Vt. effort to close nuclear plant

In a setback for Vermont’s hope to shutter its lone nuclear power plant, a federal appeals court ruled Wednesday that the Vermont Legislature does not have the authority to close Vermont Yankee.

The Legislature granted itself authority in 2006 to decide the plant’s fate, and the Vermont Senate voted in 2010 to close the plant last year, when its federal license was set to expire.

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But the ruling by the Second US Circuit Court of Appeals in New York prevents acts passed by the Legislature from closing the plant, though it allows the state’s Public Service Board to review the Vernon reactor’s operations. That could provide the state another means of closing the plant. The board is limited, however, to ruling on concerns not related to safety, such as economic and environmental issues.

The Public Service Board is scheduled to decide this year whether Vermont Yankee and Entergy Corp., its owner, should be awarded a certificate of public good, which would authorize the plant to operate until 2032.

Entergy officials, who have argued that federal law governs licensing and operation of nuclear power plants and supersedes state law, were relieved by the ruling.

“We have felt strongly for a long time now that the state of Vermont’s acts . . . were preempted by federal law,” James Sinclair, an Entergy spokesman, said in a statement. “[We] are very pleased with today’s decision.”

Governor Peter Shumlin, who as president pro tem of the Vermont Senate led the Legislature’s efforts to close the plant, said the state should rely on other sources of energy and has questioned Entergy’s safety record.

“While I disagree with the result the Second Circuit reached in preempting Vermont’s Legislature, the process does not end today,” he said in a statement. “To me, the decision does not change the simple fact that Entergy has over the years not been a good partner with Vermont, preferring to focus on multiple lawsuits against the state. “

The ruling comes two years after the Nuclear Regulatory Commission granted Vermont Yankee approval to operate through March 2032 and after environmental advocates have raised questions about the plant’s age and design. The plant has a design similar to that of the Fukushima Daiichi nuclear facility in Japan, where large amounts of radiation leaked after a massive earthquake and tsunami there two years ago.

When Entergy took over Vermont Yankee in 2002, the company agreed to seek approval for a new certificate of public good from the Public Service Board. In 2006, the Legislature required that lawmakers vote whether Entergy could continue operating the plant.

More recently, Entergy has had several problems with the plant on the Connecticut River near the Massachusetts border. A cooling tower partially collapsed in 2007, sparking concern about plant maintenance.

Environmental advocates called the appeals court ruling disappointing.

“The court’s decision is a disappointing failure to allow Vermont a stronger say in regulating a tired old nuclear plant,” said Sandra Levine, senior lawyer for the Conservation Law Foundation in Vermont, which filed a friend of the court brief siding with the state.

David Abel can be reached at dabel@globe.com. Follow him on Twitter @davabel.
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