In a vitally important ruling for Entergy Corporation and for the safety of the citizens of Vermont, Quinn Emanuel recently obtained a favorable ruling from the Vermont Public Service Board, the state regulatory agency responsible for overseeing Entergy’s Vermont Yankee Nuclear Power Station.
Under a regulation of the federal Nuclear Regulatory Commission, a nuclear facility like Vermont Yankee is required to maintain an alternate source of backup power in the event that the general electric grid suffers an outage (say, due to a storm) and the plant’s primary backup generators are unavailable. Such a source of power is needed to run safety systems at the plant, including cooling of the fuel in the reactor core. For several years, Vermont Yankee relied on a nearby hydroelectric dam as its backup power source. However, Entergy learned in 2012 that the dam would soon no longer qualify under the federal regulation. Entergy researched various replacement options, and determined that the only feasible option was installation of a diesel generator at the plant site. Although Entergy thus determined that the generator is required by federal law, Vermont law purports to require a separate state approval for new construction by a facility that generates electrical power. Accordingly, Entergy set out to obtain that approval. Given the de minimis nature of the generator in the context of the broader plant, Entergy pursued a fast-track approval from the Vermont Public Service Board.
The Board delayed for several months taking any action on Entergy’s application, apparently because the Board had earlier deemed Entergy to be operating the plant in violation of Vermont law since March 21, 2012, the expiration date of Entergy’s existing state license to operate the plant. (Entergy, by contrast, has maintained that the operations license is extended by operation of Vermont’s timely-renewal statute because Entergy timely filed its petition for a new operations license, but the Board failed to decide that petition before the March 21, 2012 expiration date of Entergy’s existing operations license. That issue is currently pending before the Vermont Supreme Court.) Entergy persisted in its effort to obtain the state license to construct the backup generator, explaining that the dam would be unavailable as of September 1, 2013, and therefore that Entergy needed to begin construction by June 11, 2013 in order to have the new backup generator in place by September 1. Entergy further explained that, while it did not wish to pursue litigation of this matter, it would be compelled to do so absent any assurance from the Board that the license would be granted.
Having received no such assurance, Entergy filed a federal lawsuit in late April 2013, arguing that Vermont’s state license requirement, as applied here, is preempted by federal law. Entergy soon thereafter moved for a preliminary injunction barring the Board or other state officials from enforcing the requirement to block construction of the generator or to punish Entergy for commencing construction. The Vermont Attorney General opposed the motion, primarily arguing that Entergy’s construction schedule was longer than necessary. Expedited discovery ensued, and a hearing was held in the federal district court in Burlington, Vermont, on June 4, 2013, just days before Entergy’s deadline to begin construction. At the end of the hearing, the court signaled that it was ready to act on the injunction if necessary, and on the morning of June 6 it asked Entergy to submit a proposed order granting the injunction. The Board, aware of these developments, granted the state license that very afternoon. Having finally received the license, Entergy was able to withdraw its federal lawsuit. Entergy then commenced construction on schedule, and is on track to complete the project in time to assure compliance with the federal regulation.