This article, by Randolph T. Holhut, was first published on The Commons.
Download a copy of Judge J. Garvan Murtha’s decision. Entergy injunction denial
Entergy Corp. has lost its bid for a preliminary injunction to keep the Vermont Yankee nuclear power plant open while a lawsuit about its long-term future winds its way through the federal court system.
On Monday afternoon, U.S. District Court Judge J. Garvan Murtha issued an 18-page decision denying Entergy’s request. He also set Sept. 12 as the trial date for the Entergy v. Vermont lawsuit.
“The motion is denied, because Entergy has failed to show that any irreparable harm it may incur between now and a decision on the merits” of its lawsuit, Murtha wrote.
Last month, lawyers for Entergy appeared in federal court in Brattleboro asking for an injunction that would allow the plant to stay open past the expiration of the Vernon plant’s original 40-year operating license on March 21, 2012.
Although Vermont Yankee received a 20-year license extension from the U.S. Nuclear Regulatory Commission in March, Entergy has not received a certificate of public good to continue operation of the plant from the Vermont Public Service Board, and the Vermont Senate voted last year to direct the board not to issue a certificate of public good for the plant.
Entergy contends that Vermont overstepped its regulatory bounds with Act 160, a 2006 law that gives the state Legislature veto power over the continued operation of the plant. In two days of testimony, Entergy’s legal team stressed that only the NRC has the authority to regulate nuclear energy.
The state’s legal team countered that Entergy had agreed to the terms of Act 160, and was attempting to go back on previous agreements it made with the state.
Murtha refused to act on Entergy’s request to invalidate Act 160. However, in his ruling, Murtha indicated that Entergy “had raised serious questions” regarding its claim that Vermont was attempting to prempt federal law. That, he wrote, warrants “further briefing and a prompt full-dress trial on the merits.”
At the same time, Murtha said Entergy failed to make the case that it would suffer irreparable harm if it had to delay a scheduled October refueling outage while waiting for the case to be resolved. During last month’s hearing, Entergy officials said that it needed to decide by July 23 whether to buy fuel to put into the reactor.
Calling it “a business decision made very difficult by the uncertainties of litigation,” Murtha wrote that “the decision to refuel is either not harmful if Entergy prevails on the merits, or it is not a cognizable injury if Vermont’s statutes are upheld. This may present a dilemma, but it does not constitute irreparable harm that can be resolved by a preliminary injunction.”
Gov. Peter Shumlin issued the following statement. “In my judgment, Vermont has acted and will continue to act responsibly regarding our energy future, and we will continue to work hard to ensure that our laws are enforced and respected. Entergy’s lawsuit is an attack on state authority, attempting to deny us a voice regarding whether Vermont Yankee will run past March 2012—even though Entergy has known since 2002 that it could not operate the plant past that date without state approval. I believe strongly in the state’s authority, and I believe that Entergy has not been an honest, fair and responsible player for Vermont.”
Vermont Attorney General William Sorrell told Vermont Public Radio on Monday that he was pleased by the ruling.
“The judge didn’t buy that Entergy would suffer irreparable harm if they didn’t get this injunction,” he said. “Now at the same time, he reinforces the fact that it’s set for an early trial date and we’ll get a decision on the merits well in advance of the end of next March.”
Entergy officials told VPR on Monday they were disappointed in the decision, and that it would evaluate Murtha’s ruling in the coming days before deciding its next course of action.
Sen. Bernie Sanders, I-Vt., who has put pressure on the Nuclear Regulatory Commission to back away from support of Entergy in the case, said: “The ruling is good news for the people of Vermont. The law is very clear that Vermont has the right to close the plant based on economic and other considerations.
“The Vermont state Senate decided last year in a bipartisan, 26-to-4 vote not to extend Vermont Yankee’s license. I agree with that decision. Vermont has that authority based on federal law as well as a 2002 agreement with Entergy, the plant owner. If Vermont chooses an energy future that does not include a 40-year-old, problem-ridden nuclear power plant and that emphasizes energy efficiency and sustainable energy, that is certainly our right.”
