Saying that its interests are adequately represented by the defendants in the case, United States District Judge J. Garvan Murtha ruled Tuesday that the New England Coalition (NEC) may not intervene in the civil suit between Entergy and the state of Vermont.
The antinuclear organization had petitioned the U.S. District Court last week to intervene as party defendants in support of the state in its defense against Entergy Corporation's legal bid to keep Vermont Yankee nuclear power plant open for 20 years beyond its originally scheduled shutdown March 21, 2012.
On Monday, Entergy asked the judge to reject the coalition's request.
Responding to that motion in his seven-page ruling, Murtha wrote that “NEC's interest in this case is adequately represented by the Attorney General, representing the State of Vermont, which shares NEC's ultimate objective in upholding the constitutionality of Vermont's statutory and regulatory scheme governing the Vermont Yankee nuclear plant.”
The state “has represented it will vigorously defend its statutory and regulatory scheme and shares NEC's ultimate objective,” Murtha wrote.
The judge also denied the ruling on the grounds that giving NEC full participation as an intervenor in the case “could unduly delay adjudication of this matter,” noting the court's recent ruling that the case be tried on an expedited timetable.
However, Murtha did encourage NEC and other parties to file friend-of-the-court (amicus curiae) memoranda opposing Entergy's request for a preliminary injunction, covering points that have not otherwise emerged in the legal filings. (“A filing that does not serve this purpose burdens the Court and is not favored,” Murtha warned.)
Two other environmental organizations - Vermont Public Interest Research Group (VPIRG) and Conservation Law Foundation (CLF) - filed motions to intervene in the case on Friday.
All three nonprofit groups asserted that they have a vested interest in the case because of previous legal action they have taken against Entergy.
At issue is the continued operation of the Vermont Yankee Nuclear Power plant in Vernon. The state legislature says that it has the authority to deny Entergy permission to operate the plant beyond its original shutdown date of March 21, 2012; the corporate nuclear giant maintains that the decision of the Nuclear Regulatory Commission (NRC) to grant Entergy a license extension preempts state law.
Sandy Levine, a lawyer for the CLF, based in Montpelier, said that Entergy's court case could potentially negate the foundation's previous litigation.
“We've been very involved in proceedings at the Public Service Board that are being challenged in the federal court case,” Levine said. “This court case would nullify actions where we are a party. We believe we have a significant interest that would allow us to participate in the federal lawsuit.”
James Moore of VPIRG said his organization has been a Vermont Yankee watchdog since the plant was opened in 1972.
“We're really pleased to be working with CLF, and we will continue to look for any way that we can make sure Vermont is protected against this seemingly rogue corporation,” Moore said. “Vermonters don't take a corporation alleging they are above the law, above keeping their own promises, very lightly.”
Entergy purchased the plant in 2002 and signed an agreement that explicitly made continued operation of the plant after 2012 contingent on a Certificate of Public Good from the Vermont Public Service Board.
In the memorandum, the company also promised it would not challenge the state's right to regulate the permit on the basis of non-safety-related issues.
In 2006, the Legislature passed a law requiring the Public Service Board to obtain permission from lawmakers before it could issue a Certificate of Public Good to Vermont Yankee.
Vermont is the only state in the country that requires a nuclear power plant owner to seek legislative approval for a license extension. In February 2010, the Vermont State Senate voted 26-4 to deny the Public Service Board permission to award Vermont Yankee a Certificate of Public Good. The senate was then led by Senate President Pro Tempore Peter Shumlin, a Democrat who was elected governor in November 2010.
Since Entergy filed its lawsuit against the state in April, it has sought a preliminary injunction from the U.S. District Court to prevent the state from enforcing the March 21, 2012 deadline.
The court is expected to issue a decision on the preliminary injunction before July. This phase of the litigation is on a fast track because Entergy has said it needs to know whether it can buy fuel for the plant by mid-summer.
Representing other interests
VPIRG and CLF officials say they believe they have a good chance of getting intervener status, despite Entergy's arguments to the contrary.
In 1982, the CLF wanted to become a defendant party to the state of Rhode Island in the case United Nuclear Corp. v. Cannon. The court rejected the request on the grounds that the state adequately represented the defendant.
In a separate case, Maine Yankee Atomic Power Co. v. Bonsey in 2000, the court ruled that Friends of the Coast's claimed interest in the case was “indistinguishable from that of the state defendants, and that interest is fully represented by them.”
Levine said these cases didn't have bearing on the requests to intervene in the Vermont Yankee case.
“The bottom line is different for each case; each needs to be decided on the facts of that case,” said Levine.
The court will decide whether to grant Entergy a preliminary injunction on May 23, Levine said, and a hearing will likely be held at the end of June.