AG: Entergy attempting to add new evidence in lawsuit

Posted
Friday July 8, 2011

BRATTLEBORO -- Vermont’s attorney general said lawyers for Entergy have disregarded the court’s post-hearing briefing order by submitting new evidence in their lawsuit for a preliminary injunction against the state.

Attorney General Bill Sorrell said that in their supplemental proposed findings of fact, Entergy’s lawyers cite reports and a news article that were released days after the hearing had ended.

Sorrell said that large paragraphs of their arguments raised new claims of alleged harm

"You can’t put new evidence and new legal arguments before the court when the time to do so has passed," Sorrell told the Reformer. "You can’t just slide it in a filing. Entergy should have to make a motion to the court as to why they should be able to bring forth new evidence."

According to Entergy’s lawyers, the state of Vermont doesn’t have the authority to prevent the plant from operating because of reliability and similar economic issues because the Vermont Yankee nuclear power plant is a wholesale plant, not a retail one and therefore lacks ratepayers to bear the cost of retail electricity rates.

In their filing, Entergy’s lawyers state that even if Vermont could consider the nuclear plant in Vernon’s reliability, the record reflects that it is reliable.

On June 27, ISO-NE announced in a press release that studies have shown that the plant is "needed to support the grid’s ability to reliably meet demand in Vermont, southern New Hampshire and portions of Massachusetts, as well as reliability for the entire region’s power system."

The problem is, the statement was made three days after the hearing on a preliminary injunction was held and introducing it violates the court’s post-hearing order, Sorrell said.

Entergy’s lawyers also pointed to a June 28 report from Standard & Poor, which stated the company’s credit outlook had moved from "stable" to "negative."

A change that "will likely increase the cost to raise capital for Entergy Corp. and those subsidiaries like ENVY that depend upon it for financing," Entergy’s filing states.

Patrick Parenteau, professor of law and director of the Environmental and Natural Resources Law Clinic at UVM, wrote in an e-mail that it appears the state’s point is valid.

"Entergy is trying to pad the record with facts and legal arguments that were not presented at the hearing," he wrote. "Entergy should have requested leave before presenting this new information."

Parenteau wrote that Judge J. Garvan Murtha, who is presiding over the preliminary injunction and the hearing on the merits of the suit beginning Sept. 12, will probably grant the motion to strike or at least afford the state the chance to rebut.

"My guess is he has already made up his mind how he is going to rule on the (preliminary injunction)," he wrote.

Sorrell said he hasn’t heard when Murtha may rule on the preliminary injunction but that he suspected it would be closer to Entergy’s self-imposed July 23 refueling deadline.

John Herron, Chief Nuclear Officer for Entergy, testified that if the plant isn’t able to refuel, it would be "highly likely" that the nuclear plant would have to be shut down, possibly before the March 21, 2012 date.

Mike Burns, a spokesman for Entergy, said the company will make its response to the state’s most recent filing through the court system.

"Entergy is not going to be trying this case in the media," Burns said. "We will make our arguments known through the court in filings and court appearances."

Josh Stilts can be reached at jstilts@reformer.com, or 802-254-2311 ext. 273.


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