Vt. judge denies bid to keep nuke plant open

Posted July 18, 2011, at 9:57 p.m.

MONTPELIER, Vt. — A federal judge said Monday he would not order that Vermont’s only nuclear plant be allowed to remain open while a lawsuit to determine its long-term future plays out.

The state is moving to close the Vermont Yankee plant, with both the governor and the state Senate on record as wanting it to close when its initial 40-year license expires next March.

The plant’s owner, New Orleans-based Entergy Corp., got a 20-year license extension for Vermont Yankee from the federal Nuclear Regulatory Commission and filed a lawsuit arguing that the federal action pre-empts the state’s effort to close the plant.

Last month, Entergy went to court asking for a preliminary order allowing it to stay open while the underlying lawsuit works its way through the courts — possibly all the way to the U.S. Supreme Court. In Monday’s order, Judge J. Garvan Murtha said there was no need for such an order because the main trial in the case is scheduled for mid-September, only eight weeks away.

“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.

During two days of hearings in late June, Entergy lawyers and witnesses told Murtha that they needed a decision on the preliminary injunction by July 23 so the company could order the specially fabricated nuclear fuel it needs to load into the reactor core during a refueling outage set for October.

Entergy lawyer Kathleen Sullivan told the judge the plant would be likely to close, rather than spend $60 million on fuel while facing an uncertain future.

After Murtha’s decision on Monday, the company would say only that it was disappointed and would be considering its options in the coming days.

Said Attorney General William Sorrell, whose office represented the state: “It’s just round one. But it’s much better to have won a round than to have lost it.”

To win a preliminary injunction, the party requesting it has to show it will suffer irreparable harm without it, and that it is likely to win the case on the merits when it gets to trial.

Sorrell and other lawyers watching the case noted that Murtha denied the injunction based on irreparable harm and pointedly did not say how likely the company was to win the underlying case.

In his ruling, Murtha said, “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.”

Both Gov. Peter Shumlin and Sen. Bernie Sanders issued statements praising the decision and faulting Entergy for challenging the state’s authority over the plant — something it said it would not do when it bought the reactor in 2002.

“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 Shumlin, who is listed as the lead defendant in Entergy’s lawsuit. “I believe strongly in the state’s authority, and I believe that Entergy has not been an honest, fair and responsible player for Vermont.”

Sanders argued it’s a matter of state’s rights. “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.”

Vermont Yankee, a 605-megawatt reactor in Vernon in the state’s southeast corner, faces the expiration of its initial 40-year federal license on March 21.

A year to the day before that date, the NRC granted the company’s request for a 20-year license extension. Vermont state law, however, requires that any electrical generator in the state get a state certificate of public good. Vermont Yankee’s existing state certificate also expires in March.

Normally, the state’s three-member utility commission, called the Public Service Board, decides whether to issue the certificate. But in 2006, the state Legislature passed a law — the state maintains it had Entergy’s blessing — making Vermont the only state in the country in which both the state House and Senate have to vote their approval before the Public Service Board could issue a new certificate to a nuclear plant.

The state Senate voted 26-4 last year against Vermont Yankee getting a new certificate of public good. The House has not voted on the question, but since the 2006 law requires a yes vote from both houses before the board can issue a new certificate, inaction has the same effect as a no vote.

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