Shall the court grant an injunction that allows Vermont Yankee to keep operating until the entire case is resolved? If the injunction is granted, the State could not close down Vermont Yankee while the lawsuit was in progress.
Injunctions are often granted when one side could take action that would be a de facto win for that side. For example, a tenant has a leaky roof and the landlord has refused to fix it. So the tenant has sued. If the landlord evicts the tenant while the court case is going on, the landlord has basically won the case, no matter what the merits of the situation might be. In this case, the court would almost certainly grant an injunction that prevents the tenant from being evicted during the court case.
Vermont Yankee is also asking to not-be-evicted during the court case.
The State Says Vermont Yankee Should Have Sued Sooner
As the Associated Press reports: Scot Kline, an assistant attorney general on the state's legal team, maintained the company was exaggerating those claimed harms. He also said the company has known for years that March 2012 loomed, could have filed its lawsuit much sooner and shouldn't be complaining of a time crunch now.
"To the extent they find themselves in a corner, they kind of walked into this corner," Kline said.
Entergy Took Action As Soon As It Could
Entergy took action as soon as it could.
- On March 10, 2011, the NRC announced it was going to grant a license extension to Vermont Yankee.
- On March 21, the license extension was granted.
- On April 18, less than a month later, Entergy filed suit against the state.
Why do I say this was "taking action as soon as it could?" A little personal history here--not about Entergy, but about my own legal education. I owned a business, and someone cheated me. It didn't cause immediate harm, but I was pretty sure it would impact my ability to get contracts in the future. (No, I am not going to go into the gory details.) At any rate, I went to a lawyer.
The lawyer told me not to sue--I couldn't win. He looked over the contracts and agreed that the other side had cheated me. However, he explained that there were two parts to a lawsuit: responsibility for the action, and harm from the action. I had one, but I didn't have the other. I had only potential harm, if other things happened in the future, if other clients did this or did that, and so forth.
In other words, any harm to me was future, nebulous, depended on other people's actions, unquantifiable. I had the cheaters on responsibility, but I could prove no real harm.
I didn't "have a case."
I was steamed, but I learned something about the law.
Earlier: Entergy Had No Case
In 2006, the legislature passed Act 160, giving themselves veto power over the Public Service Board (PSB) issuing a Certificate of Public Good (CPG) to Entergy. If Entergy had tried to bring a suit in 2006, right after Act 160 passed, I think they would have met this response from the court:
Look here, Entergy--you claim that, six years from now, IF the NRC grants you a renewal license, and IF you have that license but the legislature doesn't vote to allow the PSB to release its findings and IF the PSB finding would-have-been to grant you the Certificate of Public Good....if all this happens, then you will be harmed by this Act 160 law? Well, gimme a break. Don't clutter up the calendar with such far-fetched cases, where the harm depends on so many actions happening in your favor by so many third parties, with only the legislature causing the harm. And all this is going to happen six years from now, no less! You haven't got harm, you haven't got a case, please go away.
(Note: Entergy is currently taking the position that the PSB ruling has also been tainted by the legislature's actions. However, in the paragraph above, I am pretending it is six years ago, not today, and that Entergy attempted to sue at that time, which is what the state claims it should have done.)
The Right Steps at the Right Time
Entergy lobbied against Act 160, they fought it, they knew it was not a good thing. But they quite rightly did not sue about it until it was clearly a source of harm. In this, they acted very responsibly, in my opinion.
Of course, the State thinks Entergy should have sued immediately. After all that is what the state does! Just recently, the state lost a major suit about doctors and pharmaceutical companies, which our Attorney General argued right up to the Supreme Court. The State is johnny-on-the-spot to go to court with our tax money, but Entergy quite rightly waited till it "had a case."
Post Script: A few words about the pictures.
Howard Shaffer took these pictures outside the Brattleboro Federal Courthouse on Thursday morning, June 23. (Since Howard is behind the camera, I am in the pictures.) The Safe and Green Campaign was running a protest at that time.
In the top picture, you can see me at the far right.
In the next picture, I do not know the name of the man with the "Mafia" sign, but I have made the assumption that if you are standing on a sidewalk with a sign, you expect to get your picture taken.
The last picture shows me being interviewed by Robbie Leppzer, who is filming a documentary about Vermont Yankee. My hand-made sign says: Save the Children, Yes Vermont Yankee and shows a small child with an asthma treatment nebulizer. My point is that replacing VY with fossil would mean more childhood asthma. However, many of the anti-Vermont Yankee protesters told me, in no uncertain terms, that VY would be replaced with wind turbines and solar, not fossil.