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An Entergy lawyer testifies in front of Judge J. Garvan Murtha in last month’s hearing on the company’s request for a preliminary injunction to keep the state of Vermont from taking any action to enforce state laws that regulate the Vernon plant. On Monday, Murtha denied the request and set the trial date for September.


Judge denies Entergy's injunction request; trial set to begin on Sept. 12

Watch for more thorough coverage on this website and in Wednesday’s print edition of The Commons.

BRATTLEBORO—Entergy Corp. has lost its bid for a preliminary injunction to keep the Vermont Yankee nuclear power plant open while a lawsuit about its long-term future winds its way through the federal court system.

On Monday afternoon, U.S. District Court Judge J. Garvan Murtha issued an 18-page decision denying Entergy’s request. He also set Sept. 12 as the trial date for the Entergy v. Vermont lawsuit.

“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.

Last month, lawyers for Entergy appeared in federal court in Brattleboro asking for an injunction that would allow the plant to stay open past the expiration of the Vernon plant’s original 40-year operating license on March 21, 2012.

Although Vermont Yankee received a 20-year license extension from the U.S. Nuclear Regulatory Commission (NRC) in March, Entergy has not received a Certificate of Public Good (CPG) from the Vermont Public Service Board (PSB), and the Vermont Senate voted last year to direct the PSB not to issue a CPG for the plant.

Entergy contends that Vermont overstepped its regulatory bounds with Act 160, a 2006 law that gives the state Legislature veto power over the continued operation of the plant. In two days of testimony, Entergy’s legal team stressed that only the NRC has the authority to regulate nuclear energy.

The state’s legal team countered that Entergy had agreed to the terms of Act 160 and was attempting to go back on previous agreements it had made with the state.

Murtha refused to act on Entergy’s request to invalidate Act 160. However, in his ruling, he indicated that Entergy “had raised serious questions” regarding its claim that Vermont was attempting to preempt federal law. That, he wrote, warrants “further briefing and a prompt full-dress trial on the merits.”

At the same time, Murtha wrote that Entergy failed to make the case that it would suffer irreparable harm if it had to delay a scheduled October refueling outage while waiting for the case to be resolved. During last month’s hearing, Entergy officials said that they needed to decide by July 23 whether to buy fuel rods to put into the reactor.

Calling the decision to refuel “a business decision made very difficult by the uncertainties of litigation,” Murtha wrote that the decision to refuel “is either not harmful if Entergy prevails on the merits, or it is not a cognizable injury if Vermont’s statutes are upheld. This may present a dilemma, but it does not constitute irreparable harm that can be resolved by a preliminary injunction.”

Vermont Attorney General William Sorrell told Vermont Public Radio on Monday that he was pleased by the ruling.

“The judge didn’t buy that Entergy would suffer irreparable harm if they didn’t get this injunction,” he said. “Now at the same time, he reinforces the fact that it’s set for an early trial date and we’ll get a decision on the merits well in advance of the end of next March.”

Entergy officials told VPR on Monday they were disappointed in the decision, and that it would evaluate Murtha’s ruling in the coming days before deciding its next course of action.

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• Judge Murtha’s ruling.

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