A federal court has dealt a setback to Entergy, the owner of the Vermont Yankee nuclear power plant near Brattleboro, in its bid to keep the plant open while it sues the state of Vermont. Entergy is suing to keep the reactor operating for 20 years after its scheduled shutdown date in March, 2012. It has already been running since 1972.
The court, with Judge Garvan Murtha presiding, found that Entergy had not shown that it would incur harm if its request for an injunction to keep the plant functioning while the litigation goes forward were denied.
Entergy had argued that it needs to refuel the plant in October at an estimated cost of $60 million, and that the expenditure would become a loss if the plant had to shut down in March. An attorney for Entergy told the court the plant might shut down if the company could not get the injunction. But Murtha’s long, detailed opinion was marked by a resistance to taking Entergy’s arguments at face value. The decision to refuel or not, he wrote, “may present a dilemma, but it does not constitute irreparable harm that can be resolved by a preliminary injunction.”
On the other hand, the opinion contains no hint about which way Murtha may rule when the suit comes to trial, though it gives indications as to what he sees as pertinent questions in the case. One question, he wrote, is whether Vermont’s “legislative framework,” which potentially forces closure in a different time frame than that worked out by the plant’s owners in cooperation with the federal Nuclear Regulatory Commission, allows for the safe decommissioning of the plant. But he also wants to take a deeper look at whether the state Senate vote was—as Entergy claims—based on concerns about the safety of the plant, an issue which, as all parties acknowledge, falls under NRC jurisdiction.
Entergy has argued that the state of Vermont has no right to refuse to allow the plant to stay open because the NRC has decided that the plant should be relicensed, and the NRC decisions preempt state laws. Vermont says the basis of its case does not place it in conflict with the jurisdiction of the NRC, but is an issue related to contract. When Entergy bought the reactor in 2002, state officials point out, it signed a memorandum agreeing not to operate the plant without a so-called Certificate of Public Good from the state Public Service Board. Under Vermont law, if either chamber of the state Legislature votes against allowing the Certificate of Public Good to be issued, as the state Senate did last year, the Public Service Board cannot issue it. Entergy now claims, among other things, that the law allowing the Legislature in effect to withhold the Certificate of Public Good should not apply because it was not passed until 2006.
On the whole, Murtha’s refusal to issue an injunction is seen as positive for the state, if only because, as Vermont Attorney General William Sorrell pointed out, it means that Entergy is less likely to use delaying tactics in court than it might have been if the injunction had been granted and the company could have continued to operate the plant past the scheduled shutdown date in March. The suit reaches court September 12.
