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July 19, 2011

Judge Denies Entergy's Request for Injunction

VY The first round in the legal battle between the state of Vermont and Vermont Yankee goes to ... the state. A federal judge on Monday denied Entergy Vermont Yankee's request for a temporary injunction against the state of Vermont.

The company is suing the state to keep it from shutting down the Vernon nuclear reactor in 2012. Entergy was pushing for an early resolution to the suit because of a fuel-buying deadline. The judge denied the request, clearing the way for a full trial in September.

Attorney General Bill Sorrell and Gov. Peter Shumlin praised the ruling by U.S. District Court Judge J. Garvan Murtha, while ENVY officials offered a tempered response.

But, while Judge Murtha ruled in the state's favor this round, his ruling leaves wide open the chance that he'll rule in Entergy's favor when it comes to issuing a decision later this year when the case goes to trial.

Despite the denial, Murtha made it clear he was only denying the temporary injunction and moving for an expedited trial on the broader issues raised by ENVY's suit against the state of Vermont, Gov. Shumlin and the Vermont Public Service Board. That trial is scheduled to begin September 12.

"In the unique circumstances presented in this case, only permanent injunctive relief could likely ameliorate the alleged harms, and therefore trial on the merits has been accelerated. This court declines to order short-term drastic and extraordinary injunctive relief that will not offer certainty either in the short or long term, and will have no operative effect on state actions before trial," Murtha wrote in his 18-page decision.

Download Murtha's ruling.

Murtha said he was not swayed by concerns over the additional costs that a delayed refueling could cause if, in fact, that occurs. He also said that Entergy had not proven irreparable harm as it relates to staff retention and its credit rating. By September, however, Murtha is prepared to vet these concerns in a full trial and possibly issue an injunction at that time.

Murtha said he'll be in "a better position to tailor injunctive relief, if it is warranted, as part of a final determination of the merits. While it is understandable that Entergy wishes relief from the dread of future enforcement of allegedly preempted statutes, where the preliminary injunctive relief — which would be of very limited duration in this case — does not operate to enjoin any acts before trial, and cannot redress or ameliorate any harm, it serves only as a preview of the court’s views of the merits and is unwarranted. Preliminary injunctive relief does not guarantee permanent injunctive relief following trial on the merits. Even the duration of permanent injunctive relief is uncertain, given the appellate process and the state’s ability to amend its laws."

In other words, because both sides have signaled this case is likely headed all the way to the U.S. Supreme Court, Murtha said there's plenty of time seek injunctive relief.

Murtha's judicial record indicates he's likely to side with Entergy in the long run, as he tends to rule in favor of federal law over state's rights. Ditto the the U.S. Second Circuit Court of Appeals, which has tossed out Vermont laws in the past.

Entergy had claimed that it needed a temporary injunction in order to keep the state from shutting it down in March 2012 — and to give some assurances to its current workforce that it would remain open and that it could enter into long-term power contracts.

ENVY is arguing in federal court that neither the Legislature nor the Public Service Board has the authority to shut it down in March 2012 — only the federal Nuclear Regulatory Commission has that power. The NRC earlier this year issued Vermont Yankee a 20-year license renewal to keep it running until 2032. In its lawsuit, ENVY argued that a February 2010 vote in the Vermont Senate — led by then Senate President Pro Tem Peter Shumlin — should not be allowed to stand.

The vote came on the heels of a questionable deal to spin off Vermont Yankee to a wholly-owned subsidiary of Entergy and a massive leak of tritium into the groundwater adjacent to the Connecticut River. Though lawmakers used the word "reliability" repeatedly when talking about ENVY's troubles, ENVY argues that lawmakers were essentially trying to regulate safety, which is the purview of the federal government.

In a footnote, Murtha seems puzzled, too, by the Senate vote and appears ready to scrutinize the legislative record leading up to the vote in order to assess lawmakers' intent.

"It is also unclear to the court how a legislative scheme that does not require final determination of a renewal petition for a nuclear plant is compatible with the safe decommissioning of a plant," wrote Murtha in one footnote to his ruling. In a separate footnote, Murtha added, "The court is aware the challenged statutes contain words that may or may not permit consideration of preempted grounds for granting or denying certificates of public good, and that the legislative history of the challenged enactments contains numerous references to 'safety,' some of which may be problematic, some of which may merely reflect legislators’ responsible recognition that Vermont cannot regulate radiological health and safety."

Regardless, Sorrell called Murtha's ruling “a very good first step in an important case.” Two weeks ago, he declined to prosecute ENVY and ENVY officials for lying under oath.

Shumlin praised the ruling, saying that Vermont has acted "responsibly" regarding its energy future and will ensure that its laws and policies are enforced.

"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 Gov. Shumlin in a written statement. "I believe strongly in the state’s authority, and I believe that Entergy has not been an honest, fair and responsible player for Vermont.”

An ENVY spokesman said the company would be reviewing Murtha's ruling.

“We appreciate Judge Murtha’s timely and thoughtful decision on an issue that is critically important to our 650 employees and for all those who live in New England, although we are disappointed in the outcome. Our request for a preliminary injunction was about keeping the plant’s workers employed, the plant running safely and the electric grid reliable until this case is resolved," said ENVY spokesman Larry Smith. "In the upcoming days, we will be evaluating Judge Murtha's opinion and assessing the company's near-term options.”‬

Excellent thoughtful post, Shay. Not a knee-jerk response. And thank you very much for linking to the ruling.

The key to ascertaining Judge Murtha's long-range thinking, and which side is likely to emerge the ultimate winner after trial in September, is clearly in the footnotes. And that does not look good for Shumlin's cute scheme to pander to the left-wing of his base and deny the PSB its proper role and pretend that the whole thing was not about safety.

Murphy's comment ignores two important points.

First, while the decision and footnote #3, in particular, DOES keep open a decision for Entergy on the merits, it also eliminates virtually ALL of the arguments on preemption Entergy has brought into court so far.

Unlike Murphy (in a dialogue we had before the case was filed) and Entergy, Murtha is obviously willing to believe that legislative references to safety issues "may merely reflect legislators’ responsible recognition that Vermont cannot regulate radiological health and safety." Since these statements are also at the base of Entergy's "dog that didn't bark" argument, the fact is that the footnote subtly, but fairly completely, demolishes Entergy's case. What's left is a willingness to explore words (specific legislative text and history) that "may be problematic." For Entergy, that means it's back to the drawing board: they've only brought up two such terms so far. Now, one of them is passed over in silence: clearly, the State has finally satisfied the judge about the use of the words "public health" in Act 160.

The second point is just a matter of simple score-keeping.
A close reading of the decision shows that the judge rejected EVERY argument presented by Entergy on EVERY issue but one (reliabiity, which he leaves undecided here), while both ruling for the State overall AND accepting ALL of the State's arguments but one: namely, the rather bizarre assertion that the senate's 2010 vote is not a "legislative enactment" and therefore not before the court. Since this is NOT a significant basis of the State's general argument, rejecting it does no harm to the State's case.

Greenberg, when and where did you get your law degree? Or your basic reading comprehension skills?

I've read the decision, including the footnote, and read every commentary on the decision so far, and also heard Professor Hanna's commentary this morning on the radio (whose view of the long-range prospects for preemption jibes with mine, not yours). I haven't heard a single person besides you interpret this decision or that footnote in the happy horsesh__ way you do. Even Shay (a notorious VY-critic) concedes in his article above that:

"But, while Judge Murtha ruled in the state's favor this round, his ruling leaves wide open the chance that he'll rule in Entergy's favor when it comes to issuing a decision later this year when the case goes to trial."

Note to Greenberg: Shay didn't say just "open," he said "WIDE open." He's right.

Shay: "Murtha's judicial record indicates he's likely to side with Entergy in the long run, as he tends to rule in favor of federal law over state's rights. Ditto the the U.S. Second Circuit Court of Appeals, which has tossed out Vermont laws in the past."

Shay: "In a footnote, Murtha seems puzzled, too, by the Senate vote and appears ready to scrutinize the legislative record leading up to the vote in order to assess lawmakers' intent."

You read the footnote in a way that absolutely nobody else does. Congratulations on your truly amazing capacity for self-delusion.

You go on to say that the judge rejected every argument presented by Entergy. Umm, yeah . . . every argument except the KEY one: preemption. Du-uh. Yes, the Court rejected Entergy's "irreparable harm" arguments, but you ignore the fact that the Court expressly stated that it was not going to address the second prong of the preliminary injunction analysis, which is "likelihood of success on the merits" (i.e., whether the Vermont laws are pre-empted). Right there in the second paragraph on page 3.

But then, as apparently everyone else besides you has concluded, he clearly foreshadows the possibility of nullifying Act 160 in the text sentence to which footnote 3 is appeneded. He writes, "The Court notes, however, that Entergy has raised serious questions regarding its Atomic Energy Act premption claim." Why would he bother saying that if, as you insist, there is no chance he will find pre-emption? Why would he specifically ask for further evidence and briefing by the parties on Act 160 and Act 189 if he already knows the final answer? In fact, I could be wrong, but I think most legal analysts would conclude that, after saying he is not going to address the "likelihood of success on the merits" test, his insertion of that gratuitous footnote is intended as a specific signal to the State that they could be in trouble. That's certainly what Professor Hanna suggested on the radio this morning. But I guess she's wrong and you're a clairvoyant genius.

Finally, you somehow manage to convince yourself that "the footnote subtly, but fairly completely, demolishes Entergy's case." Huh? That is simply 100% incorrect. The footnote doesn't "demolish" anything, subtly or otherwise. No rational person can read that footnote and conclude that Entergy's case against Act 160 has been "demolished."

(As an aside, you say that the Court has somehow rejected the "two terms" regarding safety that Entergy has brought forth. Leaving aside the fact that I don't think anybody knows what you're talking about (it's certainly not clear from your writing), and leaving aside the fact that the Court CLEARLY hasn't decided that the State has "finally satisfied the judge" about anything, you seem unaware that at the trial Entergy can bring in any additional evidence and arguments that are available.)

Folks, there's no need for any of us to waste our time on the pre-emption trial in September that Judge Murtha is calling for! The Wizard of Greenberg has already figured something out that the rest of us are obviously too dense to see: Judge Murtha has already "subtly but completely demolished" Entergy's whole preemption case!

Greenberg, you certainly are entitled to your opinion on VY (we know you hate them), but your obvious bias does not give you license to wilfully read things into the Court's words that simply aren't there.

Since I have been repeatedly accused of long-windedness on this site, I tried to keep my comments above quite brief, at the cost of making them too elliptical.

1) The fact that other commentators disagree with me is no surprise. I've responded in considerable detail to Cheryl Hanna and Don Kreis on the VLS website and on the VT Digger website for anyone interested in following the debate.

I do not have a law degree or any legal training, and have never suggested otherwise.

I have, however, read all the briefs and evidence in this case and sat through both days of the hearing. I've also been working on this issue in Vermont for 25 years, have read most of the thousands of pages presented in Dockets 7400 and 7600, listened to countless hours of key legislative hearings, talked to virtually every legislator in both houses, etc.

Like everyone else involved, I bring my own knowledge and prejudices to my observations. I've never suggested that I'm a neutral observer; quite the opposite, actually: I'm an active, unapologetic partisan, and not in any way ashamed of it.

2) The main thrust of Murphy's argument (other than that I'm a shmo), as I understand it, concerns his notion that Murtha's footnote is "intended as a specific signal to the State that they could be in trouble." However, if the State is REALLY in as much trouble as he suggests, however, then why didn't Murtha simply decide that Entergy's likelihood of success on the merits was greater than 50%? Indeed, right after noting that he would NOT rule on the question page 3, he cites court precedent for the fact that this is as a crucial question in an injunction case (see p. 4)

Murtha has acknowledged that “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits," (p. 4) but he "expressly declines to issue a holding regarding Entergy’s likelihood of success on the merits." (p.3)

Since Murphy, Hanna, Kreis, and others are so convinced that the judge is signaling his verdict on preemption, why didn't he just come out and say: "I find that Entergy has shown enough of a probability of success on the merits to warrant an injunction, but I also find that it has failed to show irreparable harm," or something like that? As Entergy's lawyer pointed out, he need only have acknowledged that the chance of success is "greater than 50%," rather than actually reaching a decision on the merits, yet he "expressly declines" to do so. Why?

To be fair, the same question works in reverse, and THAT's the question I was trying to answer succinctly above: why didn't he just find that there is little or no probability of success on the merits, rather than "expressly" ducking the issue?

My answer is that, while there's nothing in THIS record that troubles him enough to rule FOR Entergy, he does NOT want to rule against them without considering a fuller record: in his own words: "... the challenged statutes contain words that may or may not permit consideration of preempted grounds..."

3) One of the two particular terms which he found troubling at the hearing -- my elliptical reference in the previous comment -- is specifically discussed within footnote 3: namely, "reliability." (Obviously, he STILL finds it troubling).

The other, which came up several times on both days of the hearing, was the phrase "public health." It was quite clear that Murtha was concerned that the term, used in Act 160, MIGHT mean "radiological health" and that this MIGHT, in turn, mean that the State was entering a federally preempted field. In its post hearing briefs, however, the State did a good job of putting his doubts to rest, I believe, and to ME, it is significant that while the judge is STILL concerned about "reliability" here, he no longer raises the issue of "public health." To be sure, I'm analyzing what he does NOT say here, and that's an inherently problematic exercise.

4) More broadly, my argument about preemption in the previous comment relies on the arguments made by Entergy in its briefs, and in the hearings. Here, as I understand them, are the 3 basic arguments Entergy has introduced so far:

a) Several legislators, especially Peter Shumlin, made statements to the press about safety. Entergy placed enormous emphasis on these in its initial two briefs. and introduced numerous supporting exhibits. The State moved to delete the exhibits from the record at the trial, to which Entergy did not respond. While I did not hear Murtha say that he is, in fact, ordering them out, my understanding was that was what happened. (It all happened quite quickly during the trial). In any case, Entergy is no longer talking about them.

b) A number of snippets of testimony in legislative hearings also considered safety issues, and especially how to avoid them so as not to be preempted. Entergy featured those at great length both in its briefs and for several hours at the hearing. Again, the judge made clear, both at the hearing, and, in my estimation, quite succinctly in footnote 3, that he does NOT buy this argument. See previous comment.

c) The remaining thrust of Entergy's argument is the "dog that didn't bark:" namely, although legislators didn't use the word safety, that MUST be what they meant. I've analyzed that argument in considerable detail elsewhere.

The gist of the argument relies on the notion that, since legislators were briefed on preemption law, they took pains to write legislative language that would NOT be preempted. From this, it follows that the words of the law cannot be interpreted to mean what they say, but rather MUST mean something else. In short, Entergy is telling us to look AWAY from the words in the text of the laws to find their true meaning.

Suffice it to say here that the footnote, by focusing on "WORDS [my emphasis] that may or may not permit consideration" Murtha appears to me to be coming back to what he also strongly hinted at during the trial as well: he wants to look at legislative text, at the actual words, rather than at a broad sweeping theory of why the laws don't mean what they actually say. This is, after all, interpretation 101: start with the text itself.

To the extent that I'm correct that Murtha rejects all of these arguments -- as he appears to do in this footnote (the first was actually gone by the time of the hearing, and therefore doesn't come up here), he has, in fact, eliminated all of the key arguments Entergy has presented in this case to this date. That's what I had in mind when I wrote: "the footnote subtly, but fairly completely, demolishes Entergy's case."

5) Finally, of COURSE, I recognize that Entergy can present new arguments, and Murtha is effectively inviting them to do so. Indeed, that's precisely what I meant by "For Entergy, that means it's back to the drawing board...." And that is also precisely why, Judge Murtha, unlike me, is not ready to find that there is no plausible chance of success on the merits. The Court record is still relatively thin when compared to the VAST legislative record on which all this is drawing.

In fairness to both Judge Murtha and to me, I would point out that he is probably not familiar with the wider record, and even if he were, it's my understanding that he is NOT allowed to take notice of it in his role as a judge in this case. I, however, am quite familiar with it, and that familiarity suggests to me that the next proceeding will not go better for Entergy than the first. Clearly, it colors my view of the chances of success on the merits, as well it should.

OMG. Blah blah blah blah blah. "In fairness to both Judge Murtha and to me, I would point out that he is probably not familiar with the wider record." Yup, you know more and are smarter than everyone -- even Judge Murtha!!!

Here's VLS's Professor Kreis (who, unlike you, IS a lawyer, and is also no fan of VY): When Murtha noted that Entergy didn't need an injunction because the full case would be heard in September, "what he might just be telegraphing to Entergy is that it doesn't need a temporary injunction now because it stands a good chance of winning after the trial in mid-September."

Here's VLS's Professor Hanna (who, again, unlike you, IS a lawyer, and is also no fan of VY): When Murtha noted that some of the Legislature's references to safety concerns about Vermont Yankee are "problematic," Hanna translated it this way: "Vermont must convince this court that the statutes in question were not enacted because of radiological concerns. The court is not yet convinced. This is critically important and the crux of Entergy's case."

Prof. Kreis, again: "It becomes distinctly possible that the purpose of this language in Judge Murtha's opinion is to reassure Entergy that it is on the right track -- so much so that it really ought to incur the business risk of moving forward with the fuel-rod purchases next week that will facilitate the planned refueling outage in October."|topnews|text|FRONTPAGE

But of course you know more about the proper interpretation of Judge Murtha's decison than these law professors do, or than Shay, or than apparently anyone else who's read it. So feel free to keep on telling us that Murtha has already "demolished" Entergy's entire case, even though the rest of us fools can't see it.

This analysis is 100% spot-on. And doesn't exactly jibe with Greenberg's "VY is already dead" view.

I guess celebrating the fact that Greenberg is opining at vtdigger and not here for a change is a violation of the mysterious new commenting policy. Figure that one out.

Funny, my post on this thread that mocked the anti-VY windbag Greenberg was IMMEDIATELY taken down, while a post on another thread left at 8:47 am yesterday which calls another poster an "idiot" is still standing.

My post making fun of Greenberg here did not use the word "idiot" and I don't believe it used any similar nouns, adjectives, or adverbs.

Is this thread about VY actively and immediately policed while others are not?

The takedown policy on this blog sure seems ad hoc and arbitrary.

Is it only a coincidence that a post that was taken down immediately was one that made fun of one of the Fred Phelpses of the politically-correct anti-VY religion, whereas an arguably politically-correct post on another thread is left up even though it calls another poster an "idiot."

Here's the thing. John Greenberg posted one comment. This was followed by four comments responding to him. By the third one, there weren't really any constructive things left to say, were there?

And I DID take down the post calling someone an idiot. Not as quickly as I took down the ones in this thread, but I don't actually stare at the blog all day watching every comment roll in. Especially since I'm out of town this week.

One could argue that use of the word "windbag" violates Blurt's commenting policy.

Murphy, I think your points would make more of an impact if you refrained from sarcasm and jabs like "windbag" and calling into question someone's basic reading comprehension skills. Attack the post, not the poster. Actually, I think most posters would be wise to consider that philosophy.

"By the third one, there weren't really any constructive things left to say, were there?"

Is that the rule? Any post - no matter how excruciatingly long - may only be responded to twice. All subsequent responses are deleted.

It's all coming together now...

Well in all fairness there is a poster (not to be named) that is a bit.....verbose.

The reading comprehension skills are also something that appears to be a downward spiral and utter failure of VT's education system which has now focused on handing out diplomas after 12 years of schooling as opposed to for a certain degree of intelligence.

C'est la vie.

No offense, Mr. Machado, but I just reviewed your blog commenting policy and I didn't see anything about removing posts that don't seem to Tyler Machado to be "constructive."

Honestly, if "being constructive" were a posting requirement, 3/4 of the posts on Blurt mine included) would have to be deleted, including ALL of PL's snarky, socialistic, bomb-throwing, bumper-sticker one-liners.

Just sayin.

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