Thursday, January 10, 2013

Hot Potato Continued: Federal Court Turns Down Entergy Injunction Request

Plant Opponent Tries a New Court

On November 29, the Public Service Board (PSB) issued a "strongly worded" but "narrow" ruling against Entergy.  In this ruling, the PSB refused to take the "requirement to have a Certificate of Public Good to operate after March 21, 2012" off the original 2002 Sale Order for Vermont Yankee.  The Board also said, however, that it  did not reach any conclusions concerning the merits of modifying or extending Entergy VY's obligations under existing Orders and CPGs.

Yes, it was a confusing ruling. A long-time plant opponent, the New England Coalition against Nuclear Pollution (NEC), looked at this ruling and used it as a basis for a suit filed  in Vermont Supreme Court.  NEC filed in Vermont Supreme Court, although active hearings were on-going at the Public Service Board and in Federal Court. In other words, NEC was trying their luck with suit in a third court.

I blogged about this opponent filing in The Very Latest Lawsuit: Opponents Will Probably Lose. I had some evidence for this.  The Vermont Department of Public Service has joined other NEC lawsuits against the plant, ever since Shumlin was elected. To my surprise, the Department of Public Service asked the Vermont Supreme Court to deny the NEC request for an injunction.  Then the Public Service Board itself asked the Vermont Supreme Court to deny the NEC petition.

One of the issues is that the Public Service Board's November 29 ruling could be read as an endorsement of third-party suits against Vermont Yankee. I wrote about this in Hot Potato and the New Request: Entergy Asks for an Injunction against PSB and Shumlin in Federal Court.   In other words, the November 29 PSB ruling could be interpreted as tossing the hot potato: Let's you (NEC) and him (Entergy) fight, and leave us (the PSB) out of it!

Entergy Tries an Old Court

As I noted in my Hot Potato post, when NEC filed in Vermont Supreme Court, Entergy filed an injunction against NEC in Federal Court. Entergy filed in the same court  that ruled for Entergy in the original case about Vermont's pre-emption of the federal prerogative to regulate nuclear safety.  The same judge (Gavan Murtha) heard the request for the injunction against NEC.  Yesterday, Murtha ruled against Entergy about the injunction.

Basically, Entergy claimed that the NEC Vermont Supreme Court filing was an end-run around the Federal Court ruling that the Public Service Board should not take action to shut down Vermont Yankee during the federal appeals process.  Judge Murtha did not explicitly agree or disagree with this analysis. However, Murtha noted that NEC was not a party to the federal suit, and that the federal court does not take action against those not involved in federal suits.  Also, the federal court usually does not interfere with state court issues.  Bob Audette at the Brattleboro Reformer describes the Judge's reasoning, including the fact that NEC asked to be a party to the original suit, but was not granted standing by the federal court.

Meanwhile, Ray Shadis of NEC issued a press release that was quoted in the Reformer: "We hope this federal rebuff will serve Entergy as an inoculation of anti-arrogance serum, but we suspect that booster shots will be needed before Vermont Yankee is history and we can move to the details of decommissioning."

Other statements by NEC echo the idea that this federal ruling is not the final "shot" in these battles. Lawyer Margolis of NEC told the Reformer that he expects Entergy to "run to the district court" if the Vermont Supreme Court orders a plant shutdown.

Vermont Supreme Court 
Ignoring the rhetoric, I interpret these statements as: "It's not over till it's over."

Indeed, it is not over yet.

The Future

The next event in this saga will be the Vermont Supreme Court hearing on the NEC request.  As noted above, both the Department of Public Service and the Public Service Board have asked the Vermont Supreme Court to dismiss the request.   (UPDATE: Entergy has also asked for the NEC request to be dismissed.  I have put the November 29 PSB statement and the Entergy request to the Vermont Supreme Court on a new page Vermont Supreme Court Filings, at the Energy Education Project.) As far as I can tell, only NEC wants the Supreme Court to take the case, and the two Vermont commissions have asked it to dismiss the case.  The Supreme Court has scheduled at 30-minute hearing on this case on Wednesday, January 16, at 2:30 p.m.

1 comment:

Howard Shaffer said...

Great Post!

I predict the Court will turn down NEC.