By Kate Duffy, Vermont Business Magazine. Entergy Nuclear has a $60 million decision to make ‘ whether to invest in refueling Vermont Yankee, even though a federal judge refused to issue a preliminary injunction assuring the company it could continue operating the plant while its lawsuit against the state is pending.
US District Court Judge J Garvan Murtha denied the request for a preliminary injunction in a decision issued Monday afternoon. He said Entergy failed to prove during a two-day hearing in June that it would suffer ‘irreparable harm’ before the case, schedule for trial in September, is decided.
During the hearing, Entergy’s lawyers argued that without an injunction that would let it plan for future operations, the company may be forced to shut down the plant before its current license expires in March. It would be unlikely to make a $60 million investment in fuel rods without an indication from the court that it might win its case.
‘Entergy, while it has raised the possibility, has not persuaded the Court that a decision to shut down is likely and imminent,’ Judge Murtha wrote in the 18-page decision.
Entergy is suing the state in federal court over whether a law that effectively gives the Legislature the right to shut down a licensed, operating nuclear power plant is constitutional. Vermont Yankee, the state’s only nuclear power plant, is slated to shut down on March 21, 2012, at the end of its original 40-year operating license.
Citing the plant’s age and history of radioactive leaks, last year the Senate voted 26 to 4 not to allow the Public Service Board to issue a certificate of public good to let the plant operate beyond its scheduled shut-down. In March, the Nuclear Regulatory Commission, which regulates all of the nation’s 104 nuclear power reactors, approved a license extension that would allow the plant to continue generating power for another 20 years. Entergy says the plant is safe and reliable and should be allowed to continue operating. It had hoped a preliminary injunction would allow it to do so while the case is pending.
Vermont Attorney General Bill Sorrell, a Democrat, said the state had won an important battle but still has a war to wage.
‘This was a nice win, but really what’s better is that the preliminary injunction was not issued,’ Sorrell said. ‘If one had been granted, that would have been a devastating blow to us because it would have required the finding by the judge, based on his understanding of the facts and the law, that it was likely that Entergy would prevail on the merits of the case as a result of the trial. We would have been really knocked backwards if that were the case.’
In ruling on the failure to prove irreparable harm, Judge Murtha did not address whether he thought Entergy could win its suit based on the merits of its case.
‘I was a little bit surprised that he so carefully skirted the merits,’ said Pat Parenteau, an attorney and professor at Vermont Law School who has been closely watching the case unfold. ‘He gave a few hints of what’s troubling him and things he wants to see addressed at trial. It’s like reading tea leaves in the opinion. But I was not at all surprised he found no irreparable harm.’
Parenteau noted it is extremely difficult to prove irreparable harm in a case like this. Instead, he noted the judge fast-tracked the case, scheduling the trial for September 12-14, in order to address the merits of the case and make a final decision.
‘The judge expressed no views whatsoever on the constitutional issues that Entergy has raised,’ Parenteau said. ‘Reading between the lines, what I see is a judge who believes the state has a right to close the plant for the proper reasons, but a judge who is not 100 percent convinced the state has done that.’
In a statement issued to reporters, Vermont Yankee spokesman Larry Smith said the company is ‘disappointed in the outcome.’ He made no indication of whether it will buy the fuel needed for the plant ‘ a decision he previously had said would have to be made by July 23. ‘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.’
Court denies preliminary injunction in Vermont Yankee case
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.’
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