Deb Lazar/The Commons
Judge J. Garvan Murtha presiding over last month’s hearing over Entergy’s request for a preliminary injunction to prevent Vermont from enforcing laws that regulate nuclear power at the Vermont Yankee nuclear station in Vernon.
News editor Randolph T. Holhut contributed to this story.
Originally published in The Commons issue #110 (Wednesday, July 20, 2011).
However, in his ruling, he indicated that Entergy “had raised serious questions” regarding its claim that Vermont was attempting to preempt federal law. Those questions, he wrote, warrant “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.”
Kreis’s reaction was decidedly more negative than Simmons’s.
“I feel really bad, I love Brattleboro. I love what you folks are doing. I’d love it if Vermont Yankee was banished from the earth,” said Kreis, assistant professor of law and associate director of Vermont Law School’s Institute for Energy and the Environment.
However, he added, people who oppose Vermont Yankee should take “no comfort in Murtha’s decision.”
In most lawsuits, judges will try to signal the parties on ways to negotiate or settle, said Kreis. But “Vermont can’t kinda sorta shut down” the plant, he said.
Kreis described Entergy’s temporary injunction case as “very thin,” saying that Murtha called the “bluff” of Entergy president, CEO, and chief nuclear officer John Herron.
Herron had testified that Energy would close the plant this summer if Vermont Yankee didn’t receive its preliminary injunction.
“Judge Murtha took note of this and was not swayed,” said Kreis, adding the temporary injunction was really a relief from a garden-variety business risk.
“I flat out predict that they [Entergy] will, in fact, order their fuel rods” and keep the plant running past 2012, said Kreis.
He cautioned VY opponents that Murtha voiced his view that Entergy’s preemption claims raise “serious questions” and warranted a full trial.
“I think he’s encouraging Entergy more than he’s discouraging Entergy,” said Kreis.
Kreis and Vermont Law School colleague Cheryl Hanna both think that Murtha has illuminated his thoughts about the parties’ arguments in a pair of footnotes in the decision.
Kreis said that Murtha essentially asked: Did the intent of the Legislature become relevant 2006, when the Legislature passed Act 160, or in 2010, when the Senate declined to vote to relicense Vermont Yankee?
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