Entergy Nuclear Vermont Yankee, LLC et al v. Shumlin et al
MEMORANDUM and ORDER denying 4 Motion for Preliminary Injunction. Signed by District Judge J. Garvan Murtha on 7/18/2011. (kak)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF VERMONT
ENTERGY NUCLEAR VERMONT YANKEE, LLC
and ENTERGY NUCLEAR OPERATIONS, INC.,
PETER SHUMLIN, in his official capacity as
GOVERNOR OF THE STATE OF VERMONT;
WILLIAM SORRELL, in his official capacity as the
ATTORNEY GENERAL OF THE STATE OF
VERMONT; and JAMES VOLZ, JOHN BURKE
and DAVID COEN, in their official capacities as
MEMBERS of THE VERMONT PUBLIC
Docket No. 1:11-cv-99-jgm
MEMORANDUM AND ORDER ON PLAINTIFFS’
MOTION FOR A PRELIMINARY INJUNCTION
Plaintiffs Entergy Nuclear Vermont Yankee, LLC (“ENVY”) and Entergy Nuclear
Operations, Inc. (“ENOI”) seek to preliminarily enjoin Defendants from enforcing Vermont
statutes that would require Vermont Yankee Nuclear Power Station (“Vermont Yankee”) to
cease operations after March 21, 2012. Trial on the merits is scheduled to begin September 12,
2011, eight weeks from the date of this Order. Plaintiffs ENVY and ENOI (collectively
“Entergy”) own and operate Vermont Yankee, a merchant plant that sells electrical power on the
interstate market and is located in Vernon, Vermont. Entergy’s Complaint challenges Vermont
Acts 74, 160, and 189 as preempted by the Atomic Energy Act, 42 U.S.C. § 2011 et seq. (See
Compl. ¶¶ 88-97, 59-76 (Doc. 1), challenging Act 74, 2005 Vt. Acts & Resolves 599; Act 160,
2006 Vt. Acts & Resolves 204; and Act 189, 2008 Vt. Acts & Resolves 478.1) Entergy also
alleges that under the Federal Power Act, 16 U.S.C. § 791a et seq., the Federal Energy
Regulatory Commission’s jurisdiction preempts that of the Vermont Public Service Board and
General Assembly to determine whether wholesale power is sold from Vermont Yankee, and
Vermont is preempted from conditioning approval of continued operation on an agreement to
provide Vermonters power at below-market rates. (Compl. ¶¶ 98-108.) Finally, Entergy alleges
any threat to condition continued operation on below-market rates for Vermonters burdens
interstate commerce in violation of the Commerce Clause and 42 U.S.C. § 1983. (Id. ¶¶ 109-15.)
Act 160 provides that without the Vermont General Assembly’s approval, the Public
Service Board may not consider Vermont Yankee’s petitions for a renewed certificate of public
good for continued operation after March 21, 2012 and storage of spent nuclear fuel. See 2006
Vt. Laws 160 § 2 (LexisNexis); Vt. Stat. Ann. tit. 30, § 248(e)(2) (West 2008). The Vermont
General Assembly has withheld that approval.2
Available at www.leg.state.vt.us/Research; 2005 Vt. Laws 74 (LexisNexis); 2006 Vt.
Laws 160 (LexisNexis); 2008 Vt. Laws 189 (LexisNexis); or VT-LEGIS-OLD (West).
Defendants argue the Vermont Senate’s February 23, 2010, 26-4 vote against reading
Senate bill S. 289 for a third time amounts to “no legislative action” on Vermont Yankee’s
petition. (Prelim. Inj. Hr’g Tr. at 130:3-21, June 24, 2010 (Doc. 83).) The “Legislative Policy
and Purpose” section of Act 160 suggests “the general assembly,” which comprises two houses,
the Senate and the House of Representatives, “shall grant the approval or deny the approval” of a
petition for operation and storage of spent nuclear fuel beyond March 21, 2012. 2006 Vt. Laws
160 § 1(f) (LexisNexis). The substantive provision of the enactment speaks only of “approval”
and appears to allow inaction by the Senate to prohibit continued operation. Vt. Stat. Ann. tit.
30, § 248(e)(2). The State’s position is that Vermont’s statutes do not require a final
determination of a petition and Acts 74 and 160 themselves amount to a decision to prohibit
continued operation. (Hr’g Tr. 132:19-24, 134:22-24, 135:2-13 (“a decision was made in Act 74
and Act 160" although the legislature is “always free to take it up”).) Vermont Yankee’s petition
for a renewed license, filed March 3, 2008, is in a suspended docket before the Public Service
Board. Entergy argues that because this legislative inaction, which amounts to a one-house
Vermont Defendants oppose the motion for a preliminary injunction. The Court has
considered the June 23 and 24, 2011 hearing testimony and arguments, the parties’ pre- and posthearing submissions, accompanying declarations and exhibits, many of which were submitted as
direct testimony and evidence at the hearing, and has reviewed four memoranda submitted by
five amici curiae (New England Coalition, Inc.; the Conservation Law Foundation and Vermont
Public Interest Research Group; International Brotherhood of Electrical Workers, Local 300; and
the Commonwealth of Massachusetts).
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. Because the
Court finds a preliminary injunction is not warranted between now and a decision on the merits
in the fall, it need not, and expressly declines to, issue a holding regarding Entergy’s likelihood
of success on the merits. The Court notes, however, that Entergy has raised serious questions
regarding its Atomic Energy Act preemption claim,3 warranting further briefing and a prompt
“pocket veto,” is to be given significant executive effect, this Court may consider events in 2010
in determining Entergy’s claim that Act 160 is preempted as applied. Id. at 62:9-13, 40:8-11,
68:25-69:2. The arguments on this question may warrant further development at trial. 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. Cf.
10 C.F.R. § 2.109(c).
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. Act 189 commissioned
a study of “reliability,” which initiated ongoing oversight at Vermont Yankee that appears to
examine numerous aspects of radiological safety affecting reliability. It is not clear if reliability
oversight pursuant to that enactment is still ongoing. (See Hinkley Decl. ¶¶ 4, 6 (Doc. 39-30).)
full-dress trial on the merits. The Court must carefully consider this claim and whether the
statutes are preempted on their face, as applied, or whether they were enacted for a preempted
purpose, as well as whether a permanent injunction is warranted, its precise scope, what State
actions, if any, would be enjoined, and, if any injunction is issued, how to tailor relief to remedy
Preliminary Injunction Standard
The decision to either grant or withhold equitable relief “rests in the sound discretion of
the court.” Petroleum Exploration, Inc. v. Pub. Serv. Comm’n of Ky., 304 U.S. 209, 218 (1938).
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.
Natural Res. Def. Council, 129 S. Ct. 365, 374 (2008). Where a party seeks to enjoin
“governmental action taken in the public interest pursuant to a statutory or regulatory scheme,” it
cannot, as an alternative to demonstrating likelihood of success on the merits, rely on a showing
that there are “sufficiently serious questions going to the merits of its claims to make them fair
ground for litigation.” Oneida Nation of N.Y. v. Cuomo, — F.3d —, 2011 WL 1745008, at *6
(2d Cir. May 9, 2011).
Preliminary injunctive relief is “an extraordinary remedy that may only be awarded upon
a clear showing the plaintiff is entitled to such relief.” Winter, 129 S. Ct. at 376; Sussman v.
The Court believes the parties’ arguments warrant further development on full evidence offered
at a trial on the merits.
Crawford, 488 F.3d 136, 139 (2d Cir. 2007) (describing preliminary injunction as “extraordinary
and drastic remedy”). Furthermore, because an injunction is a matter of discretion, even if a
plaintiff could show likelihood of success on the merits, preliminary injunctive relief “does not
follow from success on the merits as a matter of course.” See Winter, 129 S. Ct. at 381.
A showing that irreparable harm is likely in the absence of preliminary relief is “the
single most important prerequisite for the issuance of a preliminary injunction.” Rodriquez v.
DeBuono, 175 F.3d 227, 233-34 (2d Cir. 1999). Without it, a preliminary injunction cannot be
issued. The threatened harm must be “actual and imminent,” and a movant must show it “cannot
be remedied by an award of monetary damages.” Id. at 234. This Court is mindful that where
the Eleventh Amendment bars recovery of monetary damages from a state entity, remedies at law
may be inadequate. United States v. New York, 708 F.2d 92, 93 (2d Cir. 1983) (per curiam)
(dismissing argument plaintiff could have sued in state court, because federal courts may
consider only available federal legal remedies). If the temporary preliminary relief sought will
not, or is unlikely to, redress or ameliorate alleged harms, and a full trial and a final decision on
the merits can issue before enforcement of challenged laws will take effect, an injunction may
not be warranted. See Nat’l Elevator Cab & Door Corp. v. H & B, Inc., No. 07-CV-1562
(ERK)(RML), 2008 WL 207843, at *6 (E.D.N.Y. Jan. 24, 2008) (“[T]he question is not whether
the plaintiff has suffered irreparable harm, but whether it will be irreparably harmed in the
absence of an injunction. In other words, the injunction must prevent or remedy the harm.”) 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.
The Court will 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.
Entergy’s claimed harms are only likely to be alleviated by a favorable final decision on the
merits. In recognition that both parties would benefit from a swift and final resolution at the trial
level, the trial date has been accelerated.
Entergy argues it will suffer irreparable harm without a preliminary injunction
prohibiting the March 21, 2012 closure by operation of pre-empted statutes. First, without a
preliminary injunction, Entergy claims it faces the dilemma of either (a) investing large sums in a
refueling and outage, substantial portions of which will be lost if Vermont Yankee shuts down on
March 21, 2012, (b) shutting down Vermont Yankee before a decision on the merits to avoid the
outlay, or (c) delaying the October outage date and incurring a safety risk. Second, Entergy
claims an injunction is necessary to stem attrition of a skilled workforce. Third, Entergy argues
the threat of closure impairs its ability to enter long-term contracts for the sale of power after
March 21, 2012, and decreases the value of these contracts. The Court also takes judicial notice
that Standard & Poor’s, while it affirmed Entergy Corp.’s corporate credit and issue ratings,
revised the entity’s ratings outlook from “stable” to “negative” on June 28, 2011. The Court
therefore will consider whether the risk of potential damage to Vermont Yankee’s ultimate
corporate parent’s credit amounts to irreparable harm to the subsidiary absent a preliminary
injunction. See Pls.’ Suppl. to Prop. Findings of Fact Ex. A, Standard & Poor’s, Research
Update: Outlook on Entergy Corp. is Revised to Negative Amid Relicensing Uncertainties;
Ratings are Affirmed (Doc. 77-1).
Refueling and Outage
Only a final decision on the merits could actually resolve or even ameliorate the
uncertainties and dilemmas Entergy faces in making investment decisions regarding Vermont
Yankee’s upcoming order for nuclear fuel and a refueling outage.
As noted above, Entergy alleges it will suffer irreparable harm without an injunction
given any of the three choices it faces while awaiting a decision: it must either invest large sums
in a refueling and outage, substantial portions of which may be lost if Vermont Yankee shuts
down March 2012, or shut the plant down before a decision on the merits rather than incur an
unrecoverable cost,4 or it must delay the October 2010 outage date and incur a safety risk. (Mem.
in Supp. of Mot. for Prelim. Inj. at 38 (Doc. 4-1); Pls.’ Suppl. to Prop. Findings ¶ 13 (Doc. 77).)
This appears to be a business decision made very difficult by the uncertainties of litigation. A
Mr. Herron testified that denial of a preliminary injunction could induce Plaintiffs to
consider permanently shutting down Vermont Yankee before the trial on the merits, but “it’s a
decision that we have not really finalized yet.” (Prelim. Inj. Hr’g Tr., Herron Test. 198:7-15,
June 23, 2011 (Doc. 82).)
portion of the investment in refueling may be lost if Entergy is ultimately unsuccessful in its suit
and Vermont’s statutes are validated, but in that situation, the loss is not a cognizable injury.
Refueling, however, is not a harm if Entergy prevails on its claims and is able to operate for the
useful life of the fuel. Entergy’s choice not to refuel and shut down before a decision on the
merits would be irreparable harm if Entergy is ultimately successful in its litigation, but Entergy,
while it has raised the possibility, has not persuaded the Court that a decision to shut down is
likely and imminent. Finally, any risk in significantly delaying the October outage is a
preventable harm within Plaintiffs’ control, and it is not clear that such generalized harm is either
likely or imminent.
Vermont Yankee has a mandatory refueling outage scheduled approximately every
eighteen months, according to Mr. John T. Herron’s declarations and preliminary injunction
hearing testimony. (Herron Decl. ¶ 29 (Doc. 4-2); Prelim. Inj. Hr’g Tr., Herron Test. 132:24133:1, June 23, 2011 (Doc. 82).) Mr. Herron5 is president and chief executive officer of nuclear
operations and chief nuclear officer of Entergy Corporation. The next outage is scheduled for
October 8, 2011. (Herron Decl. ¶ 34; Herron Test. 140:10-11.) Herron suggested the outage
could be delayed for up to thirty days. (Herron Test. 188:11.) If an outage is delayed more than
thirty days, Mr. Herron testified the fuel core design must be re-analyzed. (Herron Decl. ¶ 34;
Herron Test. 189:15-190:6.) Of the 368 fuel assemblies in the reactor core, one-third of them
(between 115-120 assemblies) are replaced during a refueling outage. (Herron Decl. ¶ 29;
Herron Test. 135:3-6.) According to Mr. Herron, this third of the reactor core therefore has a
As CEO of nuclear operations and chief nuclear officer, Mr. Herron is responsible for
ten nuclear electric facilities in seven states, and management services for a facility in Nebraska.
useful life of between 54 and 72 months, depending on whether the company chooses to replace
it after three or four operating cycles. (Herron Test. 134:16-25.) During the refueling, the plant,
which has a Nuclear Regulatory Commission (“NRC”) resident inspector and senior resident
inspector on site, performs NRC-required inspections, testing, and other work that can only be
conducted during an outage. (Herron Decl. ¶¶ 30, 37.) Mandatory NRC inspections during the
outage cannot, in any case, be delayed beyond mid-February 2012. Id. ¶ 37. Approximately
5,000 tasks take place in a typical 25-day outage. Id. ¶ 31. To complete these tasks, the plant
imports approximately 800 to 1,000 supplemental skilled workers from other Entergy nuclear
facilities, craft labor unions, and outside contractors. Id. Shifts during the outage go around the
clock, seven days a week. Id.
Mr. Herron also declares the outage cannot be postponed beyond October of this year
because it must take place before the cold weather and winter’s peak electricity demand levels.
(Herron Decl. ¶¶ 34, 36.) The antecedent decision to order the fuel has been postponed from July
7th to July 22nd or 23rd, 2011. (Herron Reply Decl. ¶ 26 (Doc. 46-1).) With just the
commitment to purchase the fuel, Entergy will incur fabrication charges of five to ten million
dollars. (Herron Decl. ¶ 39; Herron Test. 193:20-24.) The total cost of taking apart the reactor
and replacing the fuel elements is approximately $60 to $65 million. (Herron Test. 136:15-17.)
The refueling outage itself will cost an additional $35 million. Id. at 194:1-3. Re-fabricating the
new fuel assemblies for use at another facility would cost tens of millions, according to Herron.
(Herron Decl. ¶ 39.) Once the fuel is placed in the refueling pool before the outage, re-purposing
the fuel becomes more costly, and once any fuel is placed in the reactor core, it cannot be repurposed. Id. ¶¶ 41-42. If the plant refuels and runs at full capacity until mid-March, 2012, it
will earn approximately $90 million in revenue. (Herron Test. 142:24-143:2.) Herron made
clear that profit figures for the same time period are “not even close” to the $90 million revenue
figure. Id. at 184:1-10.
Herron, both in his declarations and testimony, stated that any decision by Vermont
Yankee not to refuel could lead to a decision to permanently shut down, because depletion of the
fuel core would decrease output, while operating costs remained largely constant, making
continued operation at less-than-full capacity uneconomical. (Herron Decl. ¶¶ 44-46; Herron
Test. 143:12-16; 198:7-12.) He also testified that an alternative decision to delay the refueling
order and the outage, “if not done correctly,” puts “a safety risk at play” because safety in the
nuclear industry relies on “consistency and structure.” (Herron Test. 187:14-25; 187:13.)
However, Herron also acknowledged Entergy has not represented to the Court that
Vermont Yankee will not refuel if a preliminary injunction does not issue. Id. at 141:1-6.
A preview of the Court’s views would not, as Mr. Herron declared, “remove all uncertainty” and
serves chiefly to provide Plaintiffs with “confidence in the plant’s future,” (Herron Reply Decl. ¶
21), or give Entergy “some comfort that . . . [Entergy] can at least go and make this investment
and keep this plant operating until . . . the final . . . decision.” (Herron Test. 199:9-13.) While a
preliminary injunction would give Plaintiffs “some thought that [the case] . . . may have merit,”
and this would make it “easier” to “make a decision to go ahead and invest” in the refueling and
October outage, Herron did not “think it takes care of all the anxiety because we still have this
thing open as far as whether we will ultimately prevail.” Id. at 196:22-197:9.
In the unique circumstances presented here, the decision to refuel is either not harmful if
Entergy prevails on the merits, or it is not a cognizable injury if Vermont’s statutes are upheld.
This may present a dilemma, but it does not constitute irreparable harm that can be resolved by a
preliminary injunction. While the Court’s views would give Entergy a slightly better ability to
assess the risks and rewards of refueling given the uncertainties of trial and appellate litigation,
this is not an appropriate reason to order the extraordinary remedy of a preliminary injunction.
The Court is not persuaded any decision to shut down Vermont Yankee early is imminent. The
risks associated with a decision to delay the outage are within Entergy’s control. In the situation
presented here, where the uncertainty Entergy faces can only be resolved or ameliorated by a
decision on the merits, the appropriate course is to accelerate the trial date and issue a timely
It is not clear that the rise in attrition at Vermont Yankee in 2010 constitutes irreparable
harm, or that attrition between now and a decision on the merits will be so significant that a
preliminary injunction is warranted. Even if Entergy has carried its burden of showing that a
portion of the recent increase in attrition is caused by the impending shutdown, and is enough to
constitute irreparable harm, and even accepting that some attrition may occur between now and a
decision on the merits because employees’ futures are uncertain, there is no evidence a
preliminary injunction of limited duration is likely to curtail attrition between now and that
decision. See Ass’n of Flight Attendants-CWA, AFL-CIO v. Pension Benefit Guar. Corp. 372 F.
Supp. 2d 91, 101 (D.D.C. 2005) (finding threatened attrition of attendants was not irreparable
harm where uncertainties of litigation and termination of pension plan would not have been
eliminated by an injunction, reasoning that “it is far from clear whether an injunction would have
any effect on union members’ decisions whether to quit their jobs . . . the uncertainty regarding
the [pension] Plan will continue as long as the bankruptcy is ongoing . . . it would be unduly
speculative to conclude that an injunction would curtail this attrition.”).
Plaintiffs argue the uncertainty surrounding Vermont Yankee’s ability to operate past
March 21, 2012 is “creating increasingly serious challenges for retaining the highly specialized
and skilled personnel needed to operate the plant.” (Herron Decl. ¶ 21.)
Plaintiffs argue more employees are likely to leave as the March 2012 date approaches,
threatening the plant’s operation. (Pls.’ Mem. in Supp. of Mot. for Prelim. Inj. at 35 (Doc. 4-1 at
42).) Mr. Herron declared that between October 2010 and April 2011, seven Operations
employees and two Operations Instructors in Training resigned. (Herron Reply Decl. ¶ 7.) Of the
nine, six identified relicensing uncertainty on exit interview forms as either the primary or
secondary reason for leaving.6 Id. ¶ 9; Herron Decl. Exs. 3, 5, 7, 8, 9, 10. Additional nonOperations employees departing in 2011 also cited relicensing uncertainty as a primary or
secondary reason on their forms. (Herron Decl. Exs. 1, 2, 4, 6.)
Operations employees hired as replacements must have a license issued by the NRC that
is specific to Vermont Yankee. (Herron Decl. ¶ 19.) An operations license applicant generally
must have at least one year of plant experience and have successfully completed a two-year
training program. Id. ¶ 20. Herron claims the relicensing uncertainty makes attracting seasoned
nuclear employees increasingly difficult. Id. ¶ 22. According to Herron, despite eleven new hires
and internal promotions, the Operations and Operations Training areas are still understaffed, and
there are five currently unfilled positions in Operations Training. (Herron Reply Decl. ¶¶ 7-8.)
The exit interview for one of these Operations employees, however, indicates the
employee was told he or she had to find another position within the company or would be let go.
(Herron Reply Decl. Ex. 9 ¶ 9.)
Regarding the overall attrition rate at Vermont Yankee, Herron notes that it has gone up
as March 2012 approaches. The average attrition rate for employees who left to go work
elsewhere from 2008 through 2009 was 6.1 percent. (Herron Decl. ¶ 24.) Following the Senate’s
February 2010 vote, the attrition rate grew, and for 2010, it was 8.4 percent, approximately a
37 percent increase over the year prior. Id. ¶ 25. The attrition rate for 2011 is on track to exceed
that rate. Id.
Defendants have calculated, according to figures cited in a survey published by the
Nuclear Energy Institute, that the industry average for non-retirement attrition is two percent per
year. (Hinkley Decl. ¶ 14.) The Vermont Yankee non-retirement attrition rate for 2010 that can
be compared with that figure is seven percent. (Herron Reply Decl. ¶ 10.)
Defendants do not dispute attrition has risen approximately 37% from 2009 to 2010,7 and
may be similar in 2011. Nor do they dispute Herron’s declaration that non-retirement attrition in
2010 was more than three times the industry average. Defendants do dispute the significance and
characterization of those statistics, however. Defendants’ declarant Bruce E. Hinkley, a nuclear
industry consultant, was retained by the state of Vermont to assist in the Act 189 reliability
assessment and its continuing oversight over Vermont Yankee. (Hinkley Decl. ¶¶ 1-6 (Doc. 3930).) Hinkley attended a Management Review Meeting on March 2, 2011, where Michael
Romeo, director of Nuclear Safety for Entergy, assured participants that Vermont Yankee “was
managing attrition and that the plant was not experiencing unusual attrition,” and stated attrition
was “not affecting the reliability” of the plant. (Hinkley Suppl. Decl. ¶ 2 (Doc. 68-8).) Hinkley
Plaintiffs’ Complaint indicates Vermont Yankee employs approximately 650 people.
(Doc. 1 ¶ 1), and their Motion for Preliminary Injunction states the station “currently employs
over 600 people.” (Pls’. Mem. in Supp. of Mot. for Prelim. Inj., at 47 (Doc. 4-1).)
notes, however, that “management talked about the possibility of increased attrition because of the
issue of the relicensing.” Id.
Defendants point out, and Herron concedes, that Vermont Yankee Station’s Operations
staffing currently satisfies NRC requirements. (Hinkley Decl. ¶ 13; Herron Reply Decl. ¶ 9.)
Hinkley also points out that between February 2011 and April 2011, three employees resigned
from Operations and Operations Training areas, and of those, only one mentioned relicensing,
listing it as a secondary reason for leaving. (Hinkley Suppl. Decl. ¶ 3; Herron Reply Decl. Ex. 9
(Doc. 46-2); Hinkley Suppl. Decl. Exs. G, H.) For that one employee, the primary reason the
employee departed was because he (or she) was told he needed to find another job outside
operations within the company or be let go. (Herron Reply Decl. Ex. 9 ¶ 9.)
So, while statistics and exit interviews may show attrition did increase in 2010, it is not
clear whether the increase is so great, material, or unusual, as to constitute irreparable harm. It is
not clear attrition will be above average, and so dire in the next few weeks, that it would
constitute irreparable harm warranting an injunction.
Furthermore, Plaintiffs have presented no evidence, other than conclusory assertions, that
persuades the Court a preliminary injunction is likely to stem or curtail attrition in the period
before the Court issues a final decision on the merits.
Mr. Herron declared that a preliminary injunction “would provide substantial help in
allaying these worker concerns,” and “would blunt some of the immediacy of the looming
March 21, 2012 deadline and help to tip the balance for those workers who are now torn between
staying or leaving.” (Herron Decl. ¶ 28.) He also testified, “I think [a preliminary injunction] also
would help me with my employees. I don’t think it takes care of all the anxiety because we still
have this thing open as far as whether we will ultimately prevail in the final case here.” (Herron
Test. 197:7-10.) Uncertainty regarding whether the plant will continue beyond March 2012 may
be driving potential attrition, but other than conclusory statements that an injunction would instill
employees with “confidence in the future” (Herron Reply Decl. ¶ 21), there was no evidence
presented at the hearing that a preliminary injunction would relieve or lessen attrition over the
next few weeks. Mr. Herron’s conclusory statements, speculation, and arguments are not
sufficient. See Datapak Assocs., Inc. v. Hoynash, No. 04 Civ. 5731, 2004 WL 2290507, at *2
(S.D.N.Y. Oct. 8, 2004) (noting “[c]onclusory statements are an insufficient foundation on which
to find irreparable harm” (citing Baker’s Aid v. Hussmann Foodserv. Co., 830 F.2d 13, 16 (2d
Because the Court expects to resolve the request for a permanent injunction
expeditiously, and a final decision is more likely to relieve the uncertainty causing alleged
employee attrition than preliminary relief, it is more appropriate to proceed to trial. The Court
declines to grant the extraordinary relief of a preliminary injunction on this ground.
Impairment of Long-Term Power Contracts
The Court is not persuaded that a temporary preliminary injunction would ameliorate any
harm caused by impairment of Entergy’s ability to enter post-March 21, 2012 long-term power
contracts, or the inability to enter them without a contingency provision excusing Entergy from
performance in the event Vermont Yankee cannot produce power past March 2012.
Mr. Edward D. Kee, a vice president at NERA Economic Consulting who specializes in
the economics of the electricity industry, declared on behalf of Plaintiffs that “[n]ear-term harm is
caused by current uncertainty about whether the Vermont Yankee Station will be able to operate
after 21 Mar 2012.” (Kee Decl. ¶ 11 (Doc. 4-11).) Entergy concedes this uncertainty “will
continue to exist long after trial until all appeals are concluded” but argues this “favors the grant
of a preliminary injunction.” (Pls.’ Reply Mem. at 16 (Doc. 46 at 21).)
Entergy already has in place long-term electricity purchase agreements that are due to
expire on March 21, 2012, and it does not argue existing contracts will be jeopardized absent the
issuance of a preliminary injunction. (Kee Decl. ¶ 15.) Wholesale electricity generators like
Vermont Yankee sell electricity into the short-term ISO New England wholesale market, and they
enter long-term electricity sale agreements for some portion of their total output in order to
manage or hedge electricity market price risk and to ensure predictable revenue levels. Id. ¶ 18.
Electric utility purchasers also enter long-term contracts to hedge or control price risk. Id. ¶ 17.
“Entergy Vermont Yankee” can only enter into sale agreements for the post-March 2012 period if
those agreements include a contingency that the contracts will only be valid if Vermont Yankee is
still operating at that time. Id. ¶ 19. Understandably, contracts with such a major contingency are
less valuable than contracts without one. Id. ¶ 20; see also Kee Reply Decl. ¶ 14 (Doc. 46-6)
(distinguishing “unit contingencies” for operating plants). Furthermore, buyers are less likely to
contract with Vermont Yankee for the period following March 21, 2012, than they are with other
suppliers. (Kee Decl. ¶ 21; Kee Reply Decl. ¶ 16.)
Even with a favorable final decision on the merits at the district court level, however,
contracts entered into by Plaintiffs may still require a contingency provision for power supplied
after March 21, 2012, given the uncertainties of appellate litigation. And the Court has not seen
any evidence, and is therefore not persuaded, that issuing a temporary preliminary injunction
would facilitate Plaintiffs’ ability to enter into fixed-term long-term contracts for power supplied
after March 21, 2012. This Court declines to order such extraordinary relief before full
consideration of the merits, where it appears a temporary injunction will not alleviate or
ameliorate any such harm. Again, the best course is to accelerate the trial on the merits.
Credit Rating Outlook
This Court takes judicial notice that on June 28, 2011, Standard & Poor’s affirmed
Entergy Corp.’s corporate credit and issue ratings but revised Entergy Corp.’s credit outlook from
“stable” to “negative.” (Pls.’ Suppl. to Prop. Findings of Fact Ex. A, Standard & Poor’s, Research
Update: Outlook on Entergy Corp. Is Revised To Negative Amid Relicensing Uncertainties;
Ratings Are Affirmed (Doc. 77-1).) The Standard & Poor’s report cited, among other things, the
current uncertainty over Vermont Yankee Station’s future, as well as uncertainty for license
extensions at other plants, Indian Point Units 2 and 3 in New York, even though New York does
not have formal authority over license extensions for the Indian Point plants. Id. at 2-3. A rating
outlook assesses the potential direction of an issuer’s long-term debt rating over the next two
years, and it considers possible changes in economic or business conditions. See
http://www2.standardandpoors.com/aboutcreditratings (defining long-term credit ratings and
outlooks). It is not necessarily a precursor of a rating change, although a negative outlook
indicates the rating may be lowered. Id. When an event or unexpected change is likely to cause a
ratings change in the near term, Standard & Poor’s places the rating on CreditWatch, replacing the
outlook on that rating. Id.
While Entergy Corp.’s revised outlook in this case cites, among other things, uncertainty
surrounding three Entergy plants, not just Vermont Yankee, the prospects of the New York plants
is said to hinge in part on Vermont Yankee’s success or lack of success in state relicensing.
The Court recognizes courts have held that harm or imminent potential harm to a credit
rating and the concomitant inability to raise capital constitutes irreparable harm. Painewebber Inc.
v. Nwogugu, 98-cv-2441 (DLC), 1998 WL 545327, at *2 (S.D.N.Y. Aug. 26, 1998); Hybred Int’l
v. Thorne Legal, Inc., 08-cv-4343 (CPS)(KAM), 2008 WL 5068896, at *5 (E.D.N.Y. Nov. 24,
The ratings outlook, however, unlike placement on CreditWatch, is not necessarily an
indicator of near-term harm. Even if this Court accepted the revised outlook to be evidence of
imminent and likely potential harm to a credit rating, a preliminary injunction could only enjoin
acts between now and a final decision, does not guarantee a permanent injunction, and is not
likely to remedy the uncertainty giving rise to a revised outlook. The best course is to proceed to
trial in eight weeks with a timely decision to follow.
Therefore, Plaintiffs’ Motion for a Preliminary Injunction (Doc. 4) is DENIED.
Dated at Brattleboro, in the District of Vermont, this 18th day of July, 2011.
/s/ J. Garvan Murtha
Hon. J. Garvan Murtha
United States District Judge
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