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Entergy Corp. has asked a federal judge to put the question of the Vermont Yankee nuclear plant's future back before state regulators, but only after stripping them of many of their usual powers.
Entergy and the state laid out their final arguments in court papers filed after a federal trial over the company's lawsuit to block Vermont from shutting down its only reactor when its initial 40-year license expires in March. The filing deadline for the post-trial briefs was Monday at midnight.
Judge J. Garvan Murtha is expected to rule before the end of the year.
New Orleans-based Entergy has argued that the state Legislature had no business blocking the Vermont Public Service Board, which usually regulates utility matters, from issuing a new certificate of public good for Vermont Yankee to operate for another 20 years.
In its pleading Monday, Entergy went further, adding that the board should not be allowed to consider several of its usual criteria for determining whether a power plant should be allowed to operate in the state.
Among them: How reliable the plant is likely to be as a provider of power, what the power will cost, and whether Vermont needs the electricity.
Entergy's lead lawyer, Kathleen Sullivan, had argued during the trial that Vermont Yankee had become a "merchant plant," since Entergy bought it in 2002, selling power to all comers. If Vermont thought the power was unreliable, too costly or unneeded, the remedy was simple, Sullivan said repeatedly. "Don't buy power from us."
Sullivan didn't immediately return a call seeking comment Tuesday.
Patrick Parenteau, a Vermont Law School professor who has been following the case, said Tuesday that Entergy was "clearly overreaching" in its request to limit the Public Service Board's usual authority.
"They're asking for the moon, but they're not going to get it," he said of Entergy.
Entergy is seeking to overturn a series of state laws, including one that made the Legislature the only one in the country with veto power over the continued operation of a nuclear power plant.
The Vermont attorney general's office is fighting back by arguing in part that if Entergy had concerns about the constitutionality of those laws, it should have raised them five or six years ago when they were first enacted.
"Evidence at trial confirms that (Entergy) made a knowing, deliberate decision not to challenge (one of the laws) and (Entergy) has yet to explain why its years-long delay in asserting its challenges ... should be excused," the state said in its brief.
One question for the judge is how much weight to give audiotapes of legislative committee meetings and floor debates in which lawmakers acknowledged they were pre-empted by federal law from considering nuclear safety, which the state agrees is the sole province of the federal Nuclear Regulatory Commission.
The state argues the Legislature's often chaotic process is not what matters, but that the judge should consider only the laws that passed.
Donald Kreis, another Vermont Law School professor who has been following the case, said in an e-mail the judge would have been better off dispensing with testimony about what lawmakers said as they drafted and passed bills.
The trial "was largely a waste of time," Kreis said. "The evidence was all over the place about what the Legislature truly intended, and so we are left with absurd argumentation about how bustling the State House cafeteria is when the legislature is in session. The reality is that the meaning of (the laws) is a question of law, not fact. So, testimony about factual matters is wholly beside the point."