An Arkansas federal judge on Wednesday denied a request by an energy company to temporarily block the Arkansas Democrat-Gazette from publishing additional details from confidential documents that the newspaper obtained about the company’s involvement in building a facility that will supply power to a $4 billion Google data center in that state, a court filing showed.
The company, Entergy Arkansas, also had asked Judge Lee Rudofsky to order that the Democrat-Gazette remove from its website information in an article published on Monday about the documents.
“I think you have a strong case here,” Rudofsky told a lawyer for Entergy at a hearing Tuesday in U.S. District Court in Little Rock, according to a report in the El Dorado News Times. “But the First Amendment gives me pause here.”
The judge said, “It would take a lot to get me to do a prior restraint,” the News Times reported.
The Freedom of the Press Foundation has noted that “The Supreme Court has made clear time and again that prior restraints” — barring a media outlet from publishing certain stories — “can be justified in only the most extreme circumstances.”
Rudofsky in his order Wednesday denied Entergy’s request for a temporary restraining order against the Democrat-Gazette and other defendants. A court filing showed he plans to set a briefing schedule on Entergy’s request for a preliminary injunction in the case at a later date.
The Arkansas Times, which was also a defendant in the case, reported that during a hearing Wednesday, Rudofsky said the case involved an issue of “significant public concern.”
“Public utility companies’ special arrangements with a large data center may very well have repercussions across the state, presumably, or at least potentially, in both very positive and potentially, or presumably, negative ways,” the judge said, according to the Times.
He also said that Entergy was a utility that could be considered a monopoly “and the details of its business arrangement, especially with large users of power, for example … Google, are matters that an ordinary Arkansas citizen may very well want to be aware of.”
Entergy, in a statement after the order was issued, said, “We will never waver when it comes to protecting our customers’ privacy and confidential information. It is both the right thing to do and required by law.”
“We protect all customer information — whether it involves a household, a local manufacturer, or a global company,” the company said.
Lee Wolverton, executive editor of the Democrat-Gazette, in a statement Wednesday, said, “This case is first, foremost and in its entirety about the First Amendment. Our duty as a news organization and the duty of all news organizations is to inform the public as fully as possible about issues of high public interest.”
“Any attempt to impede that effort by using the courts to apply prior restraint to any news organization’s First Amendment rights represents an attack on the very freedoms that define our country,” Wolverton said. “That must not stand.”
Entergy said in a court filing Tuesday that the documents, which contained “trade secrets” and “highly sensitive protected information,” were “disclosed in error” by the Arkansas Public Service Commission to a woman, Jessica Kivell, who had requested them under the state’s Freedom of Information Act.
Kivell then gave the documents to a reporter for the Democrat-Gazette, which published a story on Monday under the headline “Google to pay Entergy Arkansas $526 million for solar facility to feed West Memphis data center.”
The reporter, Sydney Sasser, wrote that the $526 million payment will cover “about one-third of the $1.6 billion price tag of the facility known as Cypress Solar,” a 600-megawatt solar field and 350-megawatt battery facility that will “feed the grid from which Google’s West Memphis data center will draw massive power.”
Sasser noted that the state’s Public Service Commission in December approved a special rate contract between Google and Entergy, the details of which “have been mostly kept secret.”
“In June, Entergy residential customers began paying an added $5.77 monthly increase to cover three new power generation projects, one of them being Cypress Solar,” Sasser wrote.
Entergy Arkansas, in a civil complaint filed Tuesday in U.S. District Court in Little Rock, asked Rudofsky to issue a temporary restraining order barring the Democrat-Gazette, Sasser, Kivell,, the Arkansas Times, and its managing editor Byron Tate from further disclosing what it said were the trade secrets disclosed by the Public Service Commission. Tate told CNBC that his news outlet never received the documents.
Entergy also wanted Rudofsky to order that the Democrat-Gazette and the other defendants remove from their websites any disclosure of information from the documents “that has already occurred.”
Tate, in an interview Wednesday with CNBC after Rudofsky ruled against Entergy, said, “I’m grateful that press freedom and the public’s right to know won.”
Rudofsky, a former assistant general counsel for Walmart whom President Donald Trump appointed to the federal district court in 2019, was nominated by the president in August for a seat on the 8th U.S. Circuit Court of Appeals.
Entergy, in its statement Wednesday, said that the Democrat-Gazette’s article contained a math error that understated Google’s financial contributions to the project.
“Using the figures published in the article — $443 million plus $83 million minimum annually over 20 years — the total would be approximately $2.103 billion, not the amount reported,” Entergy said. “That distinction is significant. In fact, as demonstrated by the evidence submitted to the Arkansas Public Service Commission, Google is not only paying its cost to serve but is delivering $1.1 billion in other benefits to Arkansas customers.”
“Google’s financial contributions to expand and improve the Arkansas power grid are substantial,” Entergy said. “As we have stated publicly regarding Google’s contract — and as state officials who regulate utilities and protect the public interest have reviewed — the agreement includes important protections for existing customers.”
Those protections included Google “paying for 100% of its power needs and more,” and Google’s contracting including “termination penalties and guarantees designed to protect other customers,” the statement said.
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