Supreme Court Decision Could Delay Yankee Relicensing

April 4, 2009, McClatchy-Tribune Regional News - Bob Audette Brattleboro Reformer,

A U.S. Supreme Court decision rendered on April 1 could delay the
relicensing of Vermont Yankee nuclear power plant. But then again, the
decision might not affect the relicensing at all.

"We are sort of in limbo, not knowing what the rules are going to be,"
said Catherine Gjessing, legal counsel for Vermont's Agency of Natural

"It will probably cause further delay," said Pat Parenteau, a former
director of Vermont Law School's Environmental Law Center and of the
Environmental and Natural Resources Law Clinic.

In 2004, The Environmental Protection Agency established national
regulations for existing power plants requiring cost-benefit analyses of
upgrades made to cooling systems to reduce their impact on aquatic life.

The EPA's regulations were challenged by a suit filed by Riverkeeper,
an environmental group dedicated to protecting the Hudson River. Along with
six states, Riverkeeper contended that the 2004 regulations set weak
standards and allowed power plants to seek variances to the "best technology
available" clause in the Clean Water Act.

The U.S. Court of Appeals struck down the regulations, and ruled that
the clause prohibits EPA from comparing costs to benefits and requires EPA
to mandate use of the technology whose costs can reasonably be borne by

But several energy companies, including Entergy, appealed the decision
to the Supreme Court, which concluded that such an analysis is not required
under the Clean Water Act, though the EPA has the authority to ask for one.
The court remanded the matter to the EPA.

"The outcome of the case is not necessarily bad news," said David
Deen, river steward for the Connecticut River Watershed Council, who said a
new EPA under the Obama Administration may respond differently from the EPA
under the Bush Administration.

"I hope this EPA will be a very different one than the one that came
up with this goofy idea of cost/benefit."

"The EPA is free to make a brand new decision," said Parenteau, adding
it could take EPA quite a while to make its decision, especially if it's in
opposition to the previous administration's decision.

Entergy wants the EPA to apply cost-benefit analyses to both its
fossil-fuel plants and its nuclear plants, said Chuck Barlow, assistant
counsel general for Entergy Corporation, which owns and operates Vermont
Yankee and Indian Point.

It boils down to the phrase "wholly disproportionate," he said.

"You can make the cost matter too much," said Barlow. "And it should
be applied in a rational way. Many times you can't put a dollar figure on
environmental protection."

The Supreme Court's decision affects more than 500 power plants. Those
plants supply more than half of the nation's electricity and use more than
200 billion gallons of water each day for cooling. In the process, fish and
other aquatic life are killed, either by being crushed against intake
screens or by being drawn into the cooling system itself.

The question the Supreme Court looked at was whether the "best
technology available" caveat in the Clean Water Act included a cost-benefit

The Bush EPA made a decision that the EPA estimate the costs of
instituting the best technology available versus the value of the aquatic
life itself. In the case of Entergy's Indian Point, on the Hudson river, the
EPA concluded that the aquatic life was not worth $1.4 billion, the capital
cost for upgrades.

The Supreme Court's decision was a blow for Riverkeeper.

"We are disappointed that the Court did not affirm the lower court's
judgment in its entirety," stated Alex Matthiessen, president of
Riverkeeper, in a press release commenting on the decision. Nonetheless, he
said, "We are looking forward to working with EPA's new administrator, whom
we are confident will agree that the Bush EPA regulations failed to satisfy
the Clean Water Act's mandate that the adverse environmental impacts of
cooling water intake structures be minimized."

David Deen said the case before the Supreme Court is not the same as
the case decided by the Vermont Environmental Court, which is under appeal
at the Vermont Supreme Court.

"Our case is not based on a cost-benefit analysis," he said "It's
based on the actual impact of thermal discharge on the river."

Late last year, the environmental court allowed Entergy's requested 1
degree increase in its thermal discharge. But it also required additional
river monitoring below the dam and added limits on how hot the water can get
during the time that shad are in the river.

Both Entergy and the watershed council are appealing the environmental
court's decision. The watershed council believes the court's decision was
too lenient while Entergy believes it was too strict.

Bob Audette can be reached at, or 802-254-2311,
ext. 273.