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Vyto Starinskas / Rutland Herald The Vermont Yankee Nuclear Power Plant in Vermont on Thursday Sept. 25, 2008.

The Yankee Tapes

MONTPELIER — While a PR campaign by Entergy Corp. and a countercampaign by opponents of its nuclear power plant in Vermont trade he-said, she-said barbs, the company’s record in dealings with the state government may not have any effect on its federal lawsuit to keep the plant open past March 2012.

“From a legal perspective, if federal law preempts any state decision on closure, then it’s irrelevant,” according to Vermont Law School professor Cheryl Hanna.

The promises-made-promises-broken narrative, she said, is secondary to the more fundamental question of whether a state can unilaterally reject a nuclear power operation.

But the record of Entergy’s legislative testimony, obtained by the Vermont Press Bureau under a public-records request, offers fresh insights on an old debate and will be used by both sides to curry favor in the court of public opinion.

On April 20, 2006, nearly five years to the day before Entergy Corp. sued Vermont in federal court, the company’s spokesman, Brian Cosgrove, made what seemed at the time a rather unremarkable comment.

“The language in the dry fuel storage legislation last year provided an up-and-down vote, a policy vote, if you will, in the Legislature,” Cosgrove told the House Committee on Natural Resources and Energy. “And obviously in the process of considering the dry fuel storage issue, there is room there probably to explore other issues at the will of the Legislature, and we understand that to be true as well.”

Later, Cosgrove reaffirmed that, in order for Entergy to operate the plant beyond its license expiration in 2012, “we need to come back to the Legislature for dry fuel storage permission.”

Compare Cosgrove’s words then to the ones offered by Entergy CEO J. Wayne Leonard now. In a full-page advertisement that appears in newspapers across the state, Leonard, justifying Entergy’s disregard of a 2002 memorandum of understanding in which the company vowed not to challenge Vermont’s authority over relicensing, says, “We did not agree to a process involving the Legislature, which is inherently political.”

“The state appears to believe that inserting the General Assembly into the approval process was within its rights,” Leonard writes. “We believe it substantially changed our agreement with the State and deprived us of certain critical rights that we relied upon in purchasing the plant.”

Whether a contradiction or not, according to constitutional law experts, the issue of who said what when may be moot.

Game change?

In legal filings — the company sued Vermont on April 18 to prevent closure of Vermont Yankee — and in public statements, Entergy has focused on a 2006 law, Act 160, in which lawmakers gave themselves the power to prevent the company from seeking a certificate of public good to operate the plant beyond 2012.

Entergy officials now say that legislation, signed by Republican Gov. James Douglas, renders void the 2002 memorandum of understanding with Vermont when it purchased the plant. In that memorandum, Entergy said it wouldn’t operate after 2012 unless it won a certificate of public good from the Public Service Board.

“The 2006 state law took the decision about Vermont Yankee’s future away from the Public Service Board, a quasi-judicial expert decision-maker, independent of legislative control,” said Richard Smith, president of Entergy Wholesale Commodities, in an April 18 news release announcing the federal suit. “It instead placed Vermont Yankee’s fate in the hands of political decision-makers, namely the state General Assembly and governor who could deprive Entergy’s two subsidiaries of the opportunity to operate the Vermont Yankee plant beyond March 21, 2012, for unsupported or arbitrary reasons. This is not what we signed up for in 2002.”

Gov. Peter Shumlin, pointing to news accounts from the time, has said Entergy supported the 2006 law.

“Entergy’s lobbyists, executives and lawyers all participated in that process. Indeed, Entergy expressed its support of that law at the time,” Shumlin said.

However, the primary-source record suggests Entergy in fact lobbied against the law at every turn. In four hearings on the bill — three in the Senate Committee on Finance, one in the House Committee on Natural Resources — representatives for Entergy unequivocally opposed the bill, known then as S.124.

“Entergy Vermont Yankee does not support S.124,” Gerry Morris, a contract lobbyist representing Entergy, told Senate lawmakers during the bill’s first hearing on Feb. 1, 2006. “We are committed to pursuing a certificate of public good before the Public Service Board and we have every confidence that that process achieves the intent that the Legislature wished it to do when it created the Public Service Board some decades ago. That is the end of my testimony.”

“That was very clear,” said committee Chairwoman Ann Cummings, a Washington County Democrat.

“Thank you,” replied Morris.

“It wasn’t overly surprising either,” Cummings said.

On Feb. 22 and March 2, Morris again spoke on Entergy’s behalf in Cummings’ committee.

“This is my third time testifying on this issue and we still … oppose this bill,” Morris said March 2.

However, Morris said Entergy’s opposition wasn’t based on leaving its fate in the hands of an “inherently political” body. Rather, Morris said, the Legislature already controlled Yankee’s fate. The 2006 law, he said, “is redundant.”

“As you know you passed a dry cask storage bill last year which requires us to come back before the Legislature, and we feel this (bill) is redundant,” Morris said.

“Why do you oppose it?” asked then-Sen. Hull Maynard, a Rutland County Republican.

“Because we’re required to come back to the Legislature under the bill you passed last year under the dry cask storage,” Morris said. “We think this bill is therefore redundant.”

Needs OK for storage

In 2005, Entergy lobbied the Legislature for its approval to expand storage for the radioactive waste produced at the Vernon reactor.

The wet pools in which Entergy had been storing spent fuel were exceeding capacity.

Since 1977, Vermont statute has said that “no facility for storage, reprocessing or disposal of spent nuclear fuel elements or radioactive waste material” can be built “unless the general assembly first finds that it promotes the general good of the state and approves, through either bill or joint resolution, a petition for approval.”

So Entergy sought permission to construct the dry cask storage that now holds much of the plant’s spent fuel. The resulting law, known as Act 74, included one important stipulation, however. Lawmakers authorized only enough storage capacity to get the plant through March 21, 2012 — the date on which its license expires. After that, according to the law, “storage of spent fuel derived from the operation of Vermont Yankee … requires the prior approval of the general assembly.”

Entergy officials lauded the legislation, which was signed enthusiastically by Douglas.

“Entergy wants to pretend like the 2006 law changed the rules, subjected them to restraints and requirements that didn’t exist when they signed the memorandum of understanding in 2002,” said Rep. Tony Klein, chairman of the House Committee on Energy. “Well, guess what? They’ve always needed permission from this body for storage capacity beyond 2012. Nothing has changed here. And it’s only now that this has become so inconvenient for Entergy that they’ve decided to rewrite history.”

But the 2006 legislation did alter the ground rules, and in a significant way. As Leonard notes in his letter, the memorandum of understanding allowed Entergy to seek a certificate of public good from the PSB. The 2006 law would force Entergy to get a “yes” vote in the Legislature before having the ability to seek that certificate.

Klein said the law didn’t substantively alter the Legislature’s role.

“You’ve still got to get through the Legislature,” Klein said. “A license to operate a nuclear power plant doesn’t do you a whole lot of good if you don’t have a place to put radioactive waste. And those are the rules they agreed to in 2002, and the rules they reaffirmed in 2005 and 2006.”

States’ rights

The 2002 memorandum, and legislation from 2005 and 2006, might have no bearing on the case now before the federal courts. In his letter, Leonard eventually broaches that issue.

“I understand the frustration of those who feel the state should be able to decide for itself whether it even wants a nuclear power plant in its state,” he writes. “But what if the General Assembly were to decide that it didn’t want to let its citizens serve in the nation’s armed forces, or to comply with the Voting Rights Act?”

James Moore, clean energy advocate for the Vermont Public Interest Research Group, who lobbied on behalf of Act 160 in 2006, said Entergy’s acknowledgment of legislative control over its destiny — as articulated by company representatives long after it signed the memorandum of understanding — might not matter to the courts.

“I don’t think in the end it’s going to be terribly material to the center of the legal case, which is likely going to revolve around a constitutional question, in terms of states’ rights and federal preemption,” Moore said.

Moore, though, said the record will mar the reputation of a controversial company looking to make its case among skeptics.

“Clearly they have a problem telling the truth,” Moore said. “I think this long rambling letter from their corporate CEO isn’t going to do them any favors when people find out that what’s being said in his letter doesn’t match the historical record.”

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