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Correction: Vermont Yankee story

Published on NewsOK Modified: January 14, 2013 at 4:54 pm •  Published: January 14, 2013

They said the federal judge in Vermont, J. Garvan Murtha, overstepped his authority because the Supreme Court has always said states can decide whether nuclear power plants operate within their borders and are only pre-empted from regulating matters of radiological safety.

In papers of their own, lawyers for Entergy said the state was trying to circumvent federal authority by claiming there were non-safety issues at stake in the dispute, even though "Vermont legislators furnished the district court with a virtual cherry orchard of statements evincing that 'safety is the prime concern.'"

They said a ruling in Vermont's favor would enable state legislatures to shut down plants by merely mentioning a non-safety purpose.

"The judgment should be affirmed so that Vermont's safety concerns do not interfere with the NRC's thoroughly considered determination, after five years of study, that Vermont Yankee should be re-licensed to operate through 2032," Entergy's lawyers said.

In an amicus brief, several other states argued in support of Vermont officials, saying Murtha's ruling would "severely limit the scope of states' traditional authority to regulate power utilities, including nuclear power plants." States and ultimately taxpayers must often absorb costs associated with the decommissioning of a nuclear power plant or step in if the operator of a nuclear plant goes bankrupt or collapses, the brief noted.

The federal government, the brief said, is responsible for safety but states are responsible for all other policy choices that relate to the operation and authorization of nuclear facilities. The brief was filed on behalf of New York, Connecticut, Iowa, Maryland, Massachusetts, Mississippi, Missouri, New Hampshire and Utah.

A similar view was offered in an amicus brief filed by the National Conference of State Legislatures, which said Murtha had inappropriately cited comments legislators had made about safety to justify his ruling.

"Left uncorrected, this type of misguided judicial inquiry will inevitably chill state legislatures' willingness to debate policy issues robustly and to solicit a variety of viewpoints about proposed legislation openly," it said.