An analysis of Judge Mutha's decision today against Entergy by Jimmy Leas

Jimmy Lease is a clear minded activist from South Burlington. Please take a look at what he has to say about today's ruling.


http://www.vtd.uscourts.gov/Supporting%20Files/11cv99%20Mot%20for%20Prelim%20Inj.718.pdf

The decision today to deny the motion for a preliminary injunction is good but Entergy can take a great deal of encouragement from many of its parts. 

Today's decision is good because facts and law prevailed over Entergy's money argument. But it is a very temporary and tenuous success. The decision is worrisome because the judge signaled that he intends to give the money argument greater weight and will give serious consideration to Entergy's preemption argument and to a permanent injunction. While winning this case in October will require sustained excellent legal work, that is only one component. The massive public sentiment in Vermontagainst further operation of this plant if sustained and made visible, can have an effect to counter Entergy's money argument, its massive public relations, and its highly paid lawyers. 

The motion for the preliminary injunction was denied because Entergy could not show irreparable harm between now and a number of weeks from now when a final decision on the merits and a permanent injunction can issue after the trial in September. As the judge wrote: 

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 would be, or is likely to be, ameliorated by a preliminary injunction in the short time before this Court decides Entergy’s claims.

Ominously, the decision takes seriously Entergy's preemption argument. The decision does not mention the MOU and its waiver, latches, or Entergy's unclean hands in considering the motion for injunctive relief. In footnote 2 the decision chides the state for the position it adopted that the Senate vote did not make a final decision. Foreshadowing a possible decision favoring Entergy on the preemption issue, in footnote 3 the decision states that "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'. . ."
 
Entergy's strength is money. A reading of the decision shows the vast influence Entergy's monetary dilemma concerning the cost of refueling had on the judge. Entergy's lying to state officials under oath and its other bad acts, such as reneging on its agreement to waive any claim of federal preemption, and its failure to do preventive maintenance to prevent leaks, were not mentioned. 

Our strength is the massive public opposition to operation of Vermont Yankee after March 21, 2012. That opposition was demonstrated in scientific polls, town meeting votes, in hundreds of people coming out for local and statewide actions, and in statewide elections. 

But legal processes can be a great way to inhibit direct public involvement. When, as happened today, the preliminary decision appears favorable, the public may be even less inclined to participate--even though the rest of the text of the decision is a strong signal encouraging Entergy. Vermonters may be facing our strength being further demobilized while Entergy is encouraged to pour money into public relations and lawyers. Crucial is to bring Vermonters together--along with people from neighboring states--to help this court understand that the public continues to be heavily involved and wants the final decision to be firmly based on facts and law and not influenced by Entergy's money.