Yankee purchase is upheld

July 25, 2003

By SUSAN SMALLHEER Southern Vermont Bureau

The Vermont Supreme Court has upheld the sale of Vermont Yankee nuclear power plant to Entergy Nuclear of Jackson , Miss. , rejecting the last legal challenge to last year’s sale.

In a decision released Friday, the court rejected two legal challenges from the New England Coalition, an anti-nuclear group based in Brattleboro , which charged that the Vermont Public Service Board erred when it granted Entergy Nuclear permission to buy the plant a year ago.

Entergy paid $180 million for the Vernon reactor last July. The sellers were a consortium of New England utilities, including Central Vermont Public Service Corp. and Green Mountain Power, which together owned 55 percent of the plant.

NEC had claimed that the sale of the plant constituted a change in use of its electricity, one that didn’t benefit Vermonters as much, and thus triggered a more extensive state review.

But the high court rejected that and other arguments, saying the Public Service Board was correct that the sale didn’t need a certificate of public good under Act 248.

And the court said more than once that NEC had not made its case on several key points.

“NEC asserts that Act 248 requires the PSB to weigh the costs and benefits to Vermont of hosting a nuclear power plant that sells most of its power to entities outside Vermont . NEC’s claims must fail because its factual premise, that the proposed sale means a change in use of the facility, has no support in the PSB’s fact findings,” the court stated.

The high court also said that it was largely deferring to the Public Service Board in its interpretation of its own laws. “PSB orders ‘enjoy a strong presumption of validity,’” the justices wrote.

“We look for a compelling indication of error, and in its absence, we will uphold the PSB’s decision,” the court added.

“We’re pleased that the Supreme Court said the Public Service Board got it right,” said Entergy spokesman Robert Williams.

Efforts to reach James Dumont, attorney for the New England Coalition, or staff members of the Brattleboro-based group, were unsuccessful Friday.

NEC had been the only environmental group to appeal the highly contested sale proceedings, which resulted in Entergy sweetening its original offer for the plant and coming up with additional financial protection for Vermont ratepayers at the insistence of the PSB.

“The statute’s triggering conditions are not present under the facts of the transaction here because the purchase and sale agreement does not call for any construction,” the high court wrote.

“In sum, we conclude that the PSB correctly rejected NEC’s claim that ENVY (Entergy Nuclear Vermont Yankee) and ENO (its holding company) must obtain a 248 certificate of public good for their purchase and operation of Vermont Yankee.”

The court did say however, in a point that could have an impact on Entergy’s pending application before the PSB to increase power production at the plant by 20 percent, that its decision was “limited to the present facts.”

“If Vermont Yankee had received a 248 certificate of public good before its construction, and the station’s owners thereafter changed the use that formed the basis for its 248 CPG, our analysis of the issue would likely be different,” the justices wrote.

The plant started full operations in November 1972, although it received its state permission in 1966.

Because Entergy Nuclear plans to spend $60 million to upgrade various components of the plant in order to generate 110 additional megawatts, it must receive a certificate of public good from the Public Service Board.

Contact Susan Smallheer at susan.smallheer@rutlandherald.com.