Court denies preliminary injunction in Vermont Yankee case

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Court denies preliminary injunction in Vermont Yankee case

Tue, 07/19/2011 - 4:09am -- tim

The Federal District Court for the District of Vermont issued a decision Monday evening in favor of the State of Vermont and denied Entergy’s request for a preliminary injunction that would have prevented the State from enforcing its laws during the pendency of the litigation. In a prepared statement, Attorney General William Sorrell called the decision ‘a very good first step in an important case.’ 
"The motion is denied," wrote J Garvan Murtha, United States District Judge, "because Entergy has failed to show that any irreparable harm it may incur between now and a decision on the merits would be, or is likely to be, ameliorated by a preliminary injunction in the short time before this Court decides Entergy’s claims. Because the Court finds a preliminary injunction is not warranted between now and a decision on the merits in the fall, it need not, and expressly declines to, issue a holding regarding Entergy’s likelihood of success on the merits. The Court notes, however, that Entergy has raised serious questions regarding its Atomic Energy Act preemption claim, warranting further briefing and a prompt full-dress trial on the merits."
The issue for Vermont Yankee is whether they will, or even can at this point, order fuel to keep the plant going beyond the end of this year, when it is scheduled for refueling. The nuclear plant's 40-year license expires in March 2012. The plant has received all federal approval for a 20-year relicensing, but still needs state approval, both by the state Legislature and by the Vermont Public Service Board. Entergy maintains that the state has over-stepped its bounds by requiring the legislative approval, which is the preemption claim.
Laurence M Smith, Manager of Communications for Entergy Nuclear Vermont Yankee, said in a statement, ‘We appreciate Judge Murtha’s timely and thoughtful decision on an issue that is critically important to our 650 employees and for all those who live in New England, although we are disappointed in the outcome. Our request for a preliminary injunction was about keeping the plant’s workers employed, the plant running safely and the electric grid reliable until this case is resolved. In the upcoming days, we will be evaluating Judge Murtha's opinion and assessing the company's near-term options.’
On April 18, 2011, Entergy filed a complaint in federal district court against Governor Peter Shumlin, Attorney General William Sorrell, and members of the Vermont Public Service Board, seeking a ruling that federal law preempts Vermont laws and regulations regarding the operation of Vermont Yankee beyond March 21, 2012. Within days of suing the State, Entergy filed a motion for a preliminary injunction to enjoin Vermont from enforcing its laws during the pendency of the case. Both sides then filed extensive briefs, available here, and a hearing on the motion was held on June 23-24, 2011 in federal district court in Brattleboro.
In its preliminary injunction decision, the Court agreed with the State and rejected Entergy’s argument that it would suffer irreparable harm during the pendency of the litigation. As the Court wrote, ‘where the preliminary injunctive relief ‘ which would be of very limited duration in this case ‘ does not operate to enjoin any acts before trial, and cannot redress or ameliorate any harm, it serves only as a preview of the Court’s views of the merits and is unwarranted.’
Governor Peter Shumlin said in a 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.’
Attorney General William Sorrell noted that he looks forward to the upcoming trial on the merits: ‘We will continue to defend the constitutionality of Vermont’s laws regulating Vermont Yankee and will be working hard to prepare for the critical merits stage of this litigation.’ The case is currently scheduled for a trial on the merits beginning on September 12, 2011.
Vermont Attorney General. July 18, 2011