Plaintiffs Entergy Vermont Yankee, LLC (ENVY) and Entergy Nuclear Operations, Inc. (ENOI) respectfully submit this memorandum of law in support of their motion for a preliminary injunction to preserve the status quo pending the conclusion of this litigation and to prohibit Defendants from forcing cessation of operations at the Vermont Yankee Nuclear Power Station.
This case involves a challenge to Vermont's attempted usurpation of federal authority over continued operation of the Vermont Yankee Station, which is operated by plaintiff ENOI and owned by plaintiff ENVY.
The federal Nuclear Regulatory Commission (NRC), which has exclusive authority over nuclear power plant operation and safety, recently granted the Vermont Yankee Station a renewed license to operate through March 21, 2032.
But the State of Vermont claims veto power over that federal judgment, thus turning the Supremacy Clause of the U.S. Constitution on its head.
By this motion, plaintiffs seek a preliminary injunction preserving the status quo pending the conclusion of this litigation and prohibiting defendants from taking any action that would force the Vermont Yankee Station to cease operations.
Vermont's plan to shut down the Vermont Yankee Station as of March 21, 2012 would inflict a variety of irreparable harms upon ENVY and ENOI. It is already causing attrition of highly trained employees.
It would result in losses associated with fuel that must be fabricated in July 2011 and with refueling and maintenance that must be undertaken in or before October 2011. It would require ENVY and ENOI to file a certificate of decommissioning with the NRC that is likely irreversible, costing plaintiffs 20 years' worth of revenues.
Vermont's plan to shut down the Vermont Yankee Station would also severely and irreparably harm the public interest. For years, the Vermont Yankee Station has been providing safe, reliable, low-cost power to Vermont and New England. If the plant is shut down, jobs will be lost, electricity prices will rise, the power grid will become less reliable (both inside and outside Vermont), greenhouse gas emissions will increase, and Vermont's tax revenues will decline.
By contrast, continued operation of the Vermont Yankee Station pending the resolution of this litigation will impose no significant costs on defendants or the people of Vermont.
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Plaintiffs satisfy each of the prerequisites to a preliminary injunction:
• Plaintiffs are likely to prevail on the merits. The federal Atomic Energy Act ("AEA") and Nuclear Waste Policy Act ("NWPA") confer exclusive authority upon the federal government, specifically the NRC, in the fields of (a) the licensing and operation of an existing nuclear power plant, including storage of spent nuclear fuel; and (b) the regulation of any aspect of the radiological safety of a nuclear power plant.
In flat contravention of that authoritative federal scheme, Vermont has purported to determine that the Vermont Yankee Station must be shut down on March 21, 2012. Vermont's regulatory actions are preempted for either of two independent reasons.
First, Vermont stands alone among the 50 states in asserting that an already operating and federally licensed nuclear power plant must also have a state license (which Vermont labels a “certificate of public good”) in order to continue operations.
In purporting to exercise authority to shut down a successfully operating nuclear power plant with an existing federal license extending to 2032, Vermont intrudes impermissibly upon the exclusive authority of the NRC over the licensing and operation of nuclear power plants.
Second, Vermont has repeatedly based its assertion of regulatory authority on radiological safety concerns despite the fact that such concerns are the exclusive province of the federal government.
For example, Governor Peter Shumlin commented, in the wake of the NRC's approval of a renewal license, that “1 don't think you can convince most Vermonters today ... that Vermont's best energy choice is to play Russian Roulette with an aging nuclear power plant.”
Nor does Vermont have any non-pretextual basis to justify its plan to shut down the Vermont Yankee Station as rooted in economic, reliability or environmental grounds rather than safety grounds.
Even experts commissioned by Vermont have commended the reliability of the plant's operations. “Overall, many station managerial and technical areas meet or exceed industry standards for performance. The station is operated and maintained in a reliable manner,” Nuclear Safety Associates wrote in its 2008 Reliability Assessment of the Vermont Yankee Nuclear Facility (Dec. 22, 2008).
And studies commissioned by Vermont and other authorities have found that shutdown of the Vermont Yankee Station would cause Vermont severe economic harms rather than benefits.
Shutdown would cause significant job loss, higher electricity prices for Vermont consumers, more greenhouse gas emissions, and diminished local and state tax revenues. It would also have negative consequences for electricity retailers and consumers in other states, because the Vermont Yankee Station is a major wholesale seller of power to retail utilities - not just in Vermont, but all across New England.
Continued operation of the Vermont Yankee Station, by contrast, would generate significant economic benefit while posing no environmental concerns.
For these and other reasons, Plaintiffs are likely to succeed on the merits of their claims.
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• Plaintiffs will suffer irreparable harm absent a preliminary injunction. The threatened shutdown of the Vermont Yankee Station is already inflicting harm upon plaintiffs, as several highly skilled employees have recently quit their jobs, and more may do so.
Other irreparable harm is on the immediate horizon, including plaintiffs' need to decide by July 7, 2011 whether to fabricate fuel that is specific to Vermont Yankee Station to enable operation of the plant past March 21, 2012.
And the ultimate irreparable harm will occur if Vermont succeeds in forcing plaintiffs to shut down and begin decommissioning the plant on March 21, 2012, as plaintiffs will be required by NRC regulation to file a written certification of the permanent cessation of operations, and there is no provision in the regulations for withdrawing such a certificate after it is filed nor any NRC precedent approving a plant's return to operation under such circumstances.
In that event, plaintiffs would lose the revenues from the additional 20 years of operation authorized by the NRC under the renewed license and would have to bear the substantial costs of prematurely decommissioning the plant without any new revenue from operations.
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The balance of hardships tips decidedly in favor of plaintiffs. Plaintiffs and the public will suffer immediate and irreparable harm from a shutdown of the Vermont Yankee Station, and that harm would not be remedied by an ultimate ruling in plaintiffs' favor on the merits.
By contrast, the state of Vermont will suffer no harm (and indeed will benefit) from continued operation of the plant.
The public interest favors a preliminary injunction. The harm to the public interest from even a temporary shutdown of the Vermont Yankee Station would be significant, immediate, and irreparable.
The Vermont Yankee Station employs more than 600 people, has the capacity to produce more than 600 MW of power each year (compared to the 52 MW capacity of the next-largest generator in Vermont), supplies the equivalent of one-third of Vermont's power, supplies power to utilities in other States in the New England region, and has paid taxes and other fees to Vermont of approximately $13 million per year in recent years.
According to ISO New England Inc. (ISO-NE), the entity responsible for maintaining the reliability of the New England power grid, there would be decreased reliability of the power grid for the entire region if the Vermont Yankee Station were shut down.
And as Vermont's own studies conclude that such a shutdown would cause increases in electricity prices that would disproportionately harm the poorer residents of the state, substantial job losses at the Vermont Yankee Station and at companies facing higher electricity prices, diminished tax revenues, and increased greenhouse gas emissions from traditional power sources unless and until highly speculative sources of “green power” come online.
Accordingly, this court should grant a preliminary injunction against defendants that preserves the status quo pending the conclusion of this litigation and that prohibits them from taking actions to shut down operation of the Vermont Yankee Station.