The first round in the legal battle between the state of Vermont and Vermont Yankee goes to ... the state. A federal judge on Monday denied Entergy Vermont Yankee's request for a temporary injunction against the state of Vermont.
The company is suing the state to keep it from shutting down the Vernon nuclear reactor in 2012. Entergy was pushing for an early resolution to the suit because of a fuel-buying deadline. The judge denied the request, clearing the way for a full trial in September.
Attorney General Bill Sorrell and Gov. Peter Shumlin praised the ruling by U.S. District Court Judge J. Garvan Murtha, while ENVY officials offered a tempered response.
But, while Judge Murtha ruled in the state's favor this round, his ruling leaves wide open the chance that he'll rule in Entergy's favor when it comes to issuing a decision later this year when the case goes to trial.
Despite the denial, Murtha made it clear he was only denying the temporary injunction and moving for an expedited trial on the broader issues raised by ENVY's suit against the state of Vermont, Gov. Shumlin and the Vermont Public Service Board. That trial is scheduled to begin September 12.
"In the unique circumstances presented in this case, only permanent injunctive relief could likely ameliorate the alleged harms, and therefore trial on the merits has been accelerated. This court declines to order short-term drastic and extraordinary injunctive relief that will not offer certainty either in the short or long term, and will have no operative effect on state actions before trial," Murtha wrote in his 18-page decision.
Download Murtha's ruling.
Murtha said he was not swayed by concerns over the additional costs that a delayed refueling could cause if, in fact, that occurs. He also said that Entergy had not proven irreparable harm as it relates to staff retention and its credit rating. By September, however, Murtha is prepared to vet these concerns in a full trial and possibly issue an injunction at that time.
Murtha said he'll be in "a better position to tailor injunctive relief, if it is warranted, as part of a final determination of the merits. While it is understandable that Entergy wishes relief from the dread of future enforcement of allegedly preempted statutes, 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. Preliminary injunctive relief does not guarantee permanent injunctive relief following trial on the merits. Even the duration of permanent injunctive relief is uncertain, given the appellate process and the state’s ability to amend its laws."
In other words, because both sides have signaled this case is likely headed all the way to the U.S. Supreme Court, Murtha said there's plenty of time seek injunctive relief.
Murtha's judicial record indicates he's likely to side with Entergy in the long run, as he tends to rule in favor of federal law over state's rights. Ditto the the U.S. Second Circuit Court of Appeals, which has tossed out Vermont laws in the past.
Entergy had claimed that it needed a temporary injunction in order to keep the state from shutting it down in March 2012 — and to give some assurances to its current workforce that it would remain open and that it could enter into long-term power contracts.
ENVY is arguing in federal court that neither the Legislature nor the Public Service Board has the authority to shut it down in March 2012 — only the federal Nuclear Regulatory Commission has that power. The NRC earlier this year issued Vermont Yankee a 20-year license renewal to keep it running until 2032. In its lawsuit, ENVY argued that a February 2010 vote in the Vermont Senate — led by then Senate President Pro Tem Peter Shumlin — should not be allowed to stand.
The vote came on the heels of a questionable deal to spin off Vermont Yankee to a wholly-owned subsidiary of Entergy and a massive leak of tritium into the groundwater adjacent to the Connecticut River. Though lawmakers used the word "reliability" repeatedly when talking about ENVY's troubles, ENVY argues that lawmakers were essentially trying to regulate safety, which is the purview of the federal government.
In a footnote, Murtha seems puzzled, too, by the Senate vote and appears ready to scrutinize the legislative record leading up to the vote in order to assess lawmakers' intent.
"It is also unclear to the court how a legislative scheme that does not require final determination of a renewal petition for a nuclear plant is compatible with the safe decommissioning of a plant," wrote Murtha in one footnote to his ruling. In a separate footnote, Murtha added, "The court is aware the challenged statutes contain words that may or may not permit consideration of preempted grounds for granting or denying certificates of public good, and that the legislative history of the challenged enactments contains numerous references to 'safety,' some of which may be problematic, some of which may merely reflect legislators’ responsible recognition that Vermont cannot regulate radiological health and safety."
Regardless, Sorrell called Murtha's ruling “a very good first step in an important case.” Two weeks ago, he declined to prosecute ENVY and ENVY officials for lying under oath.
Shumlin praised the ruling, saying that Vermont has acted "responsibly" regarding its energy future and will ensure that its laws and policies are enforced.
"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," said Gov. Shumlin in a written statement. "I believe strongly in the state’s authority, and I believe that Entergy has not been an honest, fair and responsible player for Vermont.”
An ENVY spokesman said the company would be reviewing Murtha's ruling.
“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," said ENVY spokesman Larry Smith. "In the upcoming days, we will be evaluating Judge Murtha's opinion and assessing the company's near-term options.”