By Nate Raymond
NEW YORK, Jan 14 (Reuters) - A lawyer for Vermont on Monday
urged a U.S. appeals court to reverse a ruling preventing the
state from shutting down a nuclear power plant owned by Entergy
Last year, a U.S. district court judge ruled that the state
could not close the 620-megawatt Vermont Yankee plant because
federal regulators, not the state, had authority over safety
A three-judge panel of the 2nd U.S. Circuit Court of Appeals
in New York is considering whether to uphold that order.
The case has been closely watched as a test of states'
rights to regulate nuclear power utilities at a time of
heightened concern about safety following the Fukushima disaster
in Japan in 2011.
David Frederick, an attorney for Vermont, urged the appeals
court to overrule the lower court's finding that federal law
preempted a Vermont law that would have shut the facility, the
state's only nuclear plant.
"There's clearly a role for the federal government to play,
but states have the final say in whether to allow nuclear energy
in their boundaries," he told the court, which handles appeals
of federal cases in New York, Connecticut and Vermont.
Kathleen Sullivan, a lawyer for Entergy, argued that the
federal Atomic Energy Act gives the federal government sole
authority to regulate safety at nuclear plants.
In January 2010, Entergy identified a radioactive tritium
leak at the plant. Shortly after that, the Vermont state Senate
voted down a proposal to let the plant keep operating.
Despite the state's action, the U.S. Nuclear Regulatory
Commission in March 2011 approved a license for Vermont Yankee
In April 2011, Entergy sued Vermont, seeking an injunction
to keep operating after the plant's certificate was set to
expire in March 2012.
In January 2012, U.S. District Judge J. Garvan Murtha in
Vermont ruled in favor of Entergy and blocked the state from
forcing the company to shut the reactor.
The judge held that the U.S. Atomic Energy Act superseded
two state laws that were enacted based on radiological safety
concerns. Murtha also blocked enforcement of a state regulation
requiring Entergy to enter into power purchase deals with
Vermont retail utilities at below-market prices.
During Monday's arguments, Frederick contended the state had
non-safety economic reasons to want to close the plant, such as
to encourage moves to renewable sources of energy.
Vermont has garnered considerable support on appeal from
other states. New York, Connecticut, Iowa, Maryland, Missouri,
New Hampshire and Utah, along with the National Conference of
State Legislatures, filed briefs supporting Vermont.
Several environmental groups have also filed
friend-of-the-court briefs supporting the state.
Entergy has the support of business groups including the
U.S. Chamber of Commerce and the Nuclear Energy Institute Inc.
The case is Entergy Nuclear Vermont Yankee, LLC et al v.
Shumlin et al, 2nd U.S. Circuit Court of Appeals, 12-707.
For Entergy: Kathleen Sullivan, Quinn Emanuel Urquhart &
For Vermont: David Frederick, Kellogg, Huber, Hansen, Todd,
Evans & Figel.
(Additional reporting by Scott DiSavino)
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