Top court considers Yankee warm water
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By Susan Smallheer Staff Writer - Published: September 16, 2009
NEWFANE – An attorney for the Connecticut River Watershed Council argued Tuesday that a Vermont Environmental Court judge erred when she granted Entergy Nuclear permission to discharge increasing amounts of 100-degree water from Vermont Yankee into the Connecticut River.
David Mears, director of the Environment and Natural Resources Law Clinic at Vermont Law School, said that Judge Merideth Wright didn't follow the law closely enough to protect the habitat of the American shad, applying warm-water fisheries standards to that section of the Connecticut River, which has been designated a cold water fishery.
Entergy wants to discharge the water into the river warm to make money: Company officials on Tuesday estimated that it uses 20 megawatts of power to operate Vermont Yankee's cooling towers, power that it could be selling on the power market.
The Vermont Supreme Court was at Windham Superior Court Tuesday to hear the Entergy Nuclear appeal, along with several family court cases. A trial on the permit was held in Environmental Court in Newfane in 2007.
The justices were equal-opportunity grillers, giving the attorneys from both sides a workout on the legal aspects of the case in front of a courtroom filled with law students, middle school students, legislators, anti-nuclear activists and the curious.
Both Entergy and the environmental group took issue with Wright's 2008 decision, which gave Entergy the right to discharge more 100-degree water into the river during the summer months. Entergy didn't want the time restriction Wright imposed; and the watershed council believes Wright didn't make Entergy prove that the warm water wasn't affecting the fish habitat.
After the hearing, Rep. David Deen, a Westminster Democrat who is also the river steward for the Connecticut River Watershed Council, said the council was committed to fighting both this permit and any future permits from Entergy that in his mind further degrades the fish habitat in the river.
Deen said the Connecticut River was being viewed in environmental circles as a "river refuge," and thus needed special protection from environmental degradation.
Deen, who is a professional fishing guide as well as chairman of the House Fish and Wildlife Committee, said the dramatic decline in the population of the American shad that he observed personally and professionally coincided with Entergy's increased warm-water discharges.
The environmental group claimed that Entergy didn't meet its legal burden under the Clean Water Act showing the discharge had no effect on the fish.
But Entergy Nuclear's attorney, Gwyn Williams of the Boston law firm of Goodwin Procter, argued there was no science to back up the watershed council's claim. She told the justices that American shad populations had declined up and down the East Coast, not just the Connecticut River.
Williams said Entergy wanted to ensure there was plenty of power available to Vermont consumers in the hot summer months.
Wright's decision last year was viewed as a victory for Entergy, even while she set a three-month timetable for the increased warm water discharges, in an effort to protect the migrating fish.
Justice Denise Johnson quizzed the attorneys for both Entergy and the watershed council repeatedly. "It's interesting, all parties think it should go back to Environmental Court," Johnson said at one point.
The Supreme Court is expected to make a decision in the coming months; and Entergy has already applied to renew the permit under appeal since so much time has lapsed since it first applied in 2005.
Vermont Yankee operated for about 18 years without discharging the heated water into the river, or under a "closed cycle" system. It started discharging the warm water into the river in the 1980s, Williams said. The water that is discharged is not radioactive.
susan.smallheer@rutlandherald.com
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