Monday, July 4, 2011

The Vermont Attorney General Will Soon Announce Something Or Other About Entergy

In a previous post, Vermont Yankee, the Vermont Attorney General, and the Completely Political Timing of Lawsuits, I pointed out how the Vermont Attorney General, William Sorrell was planning to "release the results of his investigation" soon. Sorrell has now announced that he will release these results tomorrow. The timing of this release seems to be so important that Sorrell has to chosen to make an announcement of the day that he will make the announcement.

For William Sorrell, the timing is crucial. He is making his announcement while Judge Murtha is deliberating on whether to grant Entergy's request for an injunction. If granted, the injunction would assure Entergy that the state will not shut them down while legal actions are pending. (The injunction is discussed in my post Did Vermont Yankee Bring the Suit at the Right Time?)

What Can Sorrell Accomplish?

The actions "under investigation" happened two years ago. Last year, three separate groups investigated whether Entergy had deliberately mislead its regulators. Three separate groups said: Entergy did not lie to its regulators. Entergy did answer some questions incorrectly. However, these answers showed no intention to mislead.

The three reports on this subject were published last summer, between April and July. They are referenced below:
These links are to the original documents, though I have many blog posts on the subject too. You can read the reports for yourself -- right here, right now.

The bottom line is: Entergy said some things that were incorrect, but Entergy did not intend to mislead by these statements.

What is Sorrell going to prove? The facts are well known, after all.
  • The statements Entergy made are well documented.
  • Many investigations have determined "who knew what and who said what."
  • Further digging can reveal little or nothing.
Perhaps Sorrell will come up with interesting hypotheses on Imperfect Management Styles. What will this prove? It's a long way from Imperfect Management Styles to Criminal Liability and Perjury. Sorrell will find Entergy managers were imperfect, but not dishonest.

Imperfect Management Styles of William Sorrell

Sorrell is playing this game as if Judge Murtha is a fool who can be swayed by well-timed banging on the table. I think that is an assumption Sorrell will lose.

Recently, John McClaughry of the Ethan Allen Institute shared two letters with me, letters that he had written to William Sorrell this spring. They show Sorrell's own imperfect management style.

On March 30 of this year, McClaughry wrote:

Over a year ago, according to media reports, you announced a criminal investigation of Entergy, related to allegedly false statements made to the Public Service Board regarding tritium leakage at Vermont Yankee.

Now that over a year has passed since your initiation of this investigation, have you made public your findings and/or initiated prosecution?

If not, has your investigation been slowed by a shortage of qualified lawyers on your staff, and if so, what additional legal resources will be necessary to bring this investigation to a speedy conclusion?

Or have you quietly concluded your investigation without any public announcement?

On June 21, McClaughry wrote again:

I learned from Assistant AG Treadwell, replying on April 25 to my inquiry of March 30, that your industrious staff will complete “this spring” your now 15-month old criminal investigation into whether an official of Entergy may have made a false statement in testimony before the Public Service Board several years ago.

“Spring” has now passed into history, and I continue to wait expectantly for what will no doubt be startling revelations from your office, extracted from the two million (!) pages of documentation produced by Entergy in response to your requests. Will I and the anxious public soon learn of the results of these labors?

I would also like to request an accounting for the expenditure of your office’s funds in perusing and evaluating the two million (!) pages of documents said to be relevant to the allegedly false statement, on top of the report resulting from the investigation by the independent law firm hired by Entergy to examine the allegation.

The story so far shows Sorrell to be a poor manager (promising to complete an investigation this spring). But is he a good lawyer?

Arguing Before the Supreme Court

In his June letter, McClaughry makes polite requests about the investigation, quoted above. Then McClaughry does a little needling:

On a related matter, it appears that Entergy Nuclear v. Shumlin, Sorrell et al..... will eventually be argued before the Supreme Court of the United States. I want to urge you, as Vermont’s attorney general, to personally argue this case before the Supreme Court. I’m sure the Court will give as great weight to your arguments as it did in your prior appearance there.

What was this remark about? How is McClaughry needling Sorrell? Well, In mid-June, Vermont lost a major lawsuit before the Supreme Court.

Vermont brought a lawsuit about physician confidentiality, and argued it all the way to the Supreme Court. This was a multi-year, expensive lawsuit. In June, the Supreme Court ruled against Vermont 6-3. Here's Vermont Law School professor Cheryl Hanna on the ruling:

"What the (Vermont) law did, the Court said, was suppress speech that was “too persuasive” and contrary to the state’s own policy goals of promoting generic drug use. In essence, the Court said Vermont had engaged in censorship for political reasons. The state may not like pharmaceutical companies, but it doesn’t have the right to keep them quiet. .....

The consequence of that, the Court held, is to withhold otherwise true and accurate information from consumers. If state tries to do so, it must have, in plain English, a really, really good reason. But Vermont couldn’t come up with a really, really good reason. The law didn’t protect physician privacy, it didn’t lower the cost of medical services and it didn’t promote public health...

In both the 2006 Randall campaign finance case and today’s Sorrell decision, Vermont compromised constitutional precision in favor of political popularity, positioning the state as David and financially powerful voices as Goliath. In both cases, the Court saw it the other way around."

In June, the Supreme Court decided the pharmaceutical case on the basis of freedom of speech. Sorrell was unsuccessful in trying to show that the Vermont law protected somebody, and didn't violate free speech. Since many the Supreme Court decisions nowadays are 5-4, losing 6-3 is losing big.

As a Taxpayer Myself

Perhaps someone should investigate why Sorrell wastes Vermont's money this way. (Hopefully, this group will announce the results of their investigation while a judge is deliberating on one of Sorrell's cases.) If someone gathered 2 million documents, I am sure there might be something to say, if only something like:

The current Vermont Attorney General might benefit from some refresher courses in the law. Merely knowing how to pound on the table isn't enough.


Legal aphorism: "If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither on your side, pound the table."

Photos of Khrushchev pounding the table (probably a fake picture) and the Supreme Court building (a real picture) from Wikipedia.


Howard Shaffer said...

Great analysis. We'll see today.

VY missed the need to reverse course and be open. They continued on the old course of adversarial relations with regulators, common in the utility industry. Prof. Kreis pointed out this condition.

Meredith Angwin said...

Howard. As I predicted, the AG did not have anything resembling a criminal case, but he did a great job of innuendo ("it's hard to prove perjury" ).

The facts have been known for a year. Sorrell brought nothing new to the table...except a photo op for himself while Judge Murtha is deliberating on the injunction.

There are many ways Entergy could have communicated better. However, no improvement in Entergy communications would have mattered to Sorrell or Shumlin. That's my opinion, anyway.

Atomikrabbit said...

I believe the Khrushchev picture is faked, but the incident was real:

Nevertheless, it is an apt metaphor for the People’s Socialist Republic of Vermont, as governed by Shumlin, Sanders, Sorrell, et all.

jimwg said...

It's like Sorrell's on some obscene grudge match. I hope Vermonters appreciate that the Green Mountains and rolling countrysides are lovely enough without forests of monsterous whirligigs.

James Greenidge