Vermont Judge Denies Vermont Yankee's Request to Stay Open During Case

MONTPELIER, Vt. — On Monday, a federal judge ruled that he would not order that Vermont's only nuclear plant be allowed to remain open while a lawsuit to determine its long-term future plays out.

Toxics Action Center and the state of Vermont are working to close the Vermont Yankee plant, with both the governor and the state Senate on record as wanting it to close when its initial 40-year license expires next March.

Last month, Entergy went to court asking for an injunction allowing the plant to remain open while the case works its way through the courts. In Monday's order, Judge J. Garvan Murtha deemed the request unnecessary because the main trial is only eight weeks away.

"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.

During the hearings in late June, Entergy lawyers and witnesses testified that they needed a decision on the preliminary injunction by July 23 so they could order the specially fabricated nuclear fuel it needs to load into the reactor core during a refueling outage set for October.  The fuel costs $60 million, and Entergy lawyer Kathleen Sullivan told the judge that the plant would be likely close rather than spend the money with such an uncertain future. 

To win a preliminary injunction, the party requesting it has to show it will suffer irreparable harm without it, and that it is likely to win the case on the merits when it gets to trial.

Both Gov. Peter Shumlin and Sen. Bernie Sanders issued statements praising the decision and faulting Entergy for challenging the state's authority over the plant — something it said it would not do when it bought the reactor in 2002.

"Entergy's lawsuit is an attack on state authority, attempting to deny us a voice regarding whether Vermont Yankee will run past March 2012 — even though Entergy has known since 2002 that it could not operate the plant past that date without state approval," said Shumlin, who is listed as the lead defendant in Entergy's lawsuit. "I believe strongly in the state's authority, and I believe that Entergy has not been an honest, fair and responsible player for Vermont."

Sanders argued it's a matter of state's rights. "If Vermont chooses an energy future that does not include a 40-year-old, problem-ridden nuclear power plant and that emphasizes energy efficiency and sustainable energy, that is certainly our right."

Vermont Yankee's initial 40-year federal license is scheduled to expire on March 21, 2012.

Last year, the federal NRC granted the company's request for a 20-year license extension, however, Vermont state law requires that any electrical generator in the state get a state certificate of public good. Vermont Yankee's existing state certificate is also set to expire in March.

The state Senate voted 26-4 last year against Vermont Yankee getting a new certificate of public good. The House has not voted on the question, but since the 2006 law requires a yes vote from both houses before the board can issue a new certificate, inaction has the same effect as a no vote.