Attorney General of Vermont Acknowledges "Shaky Concept" in Charging Entergy for Vermont's Expenses

The Bank of Entergy

Vermont Yankee received its license extension from the NRC, but the Vermont legislature thought a one-house vote on a one-sided contract change could shut the plant down. Entergy sued the state, and Governor Shumlin's reaction was swift. He would fight! In an April blog post, I quoted a Brattleboro Reformer article (now behind a paywall) as follows:

Attorney General Bill Sorrell said his office has been preparing for well over a month for the possibility that either Entergy would be suing the state or it would continue operating the plant, forcing the state to sue Entergy.

"We've known this was going to end up in court," he said. "The governor authorized us to get more resources, both in staffing and expert witnesses. We've got a lot of work to do, but we're not scrambling woefully behind." (emphasis added by blogger)

Shumlin hadn't caught on to the fact that the Bank of Entergy was closed. He still thought he could order up "more resources" whenever he wanted to do so. Shumlin was used to the idea that Entergy paid for everything.

Just as you must pay the costs for your car inspection and license certificate, Entergy was required to pay all state costs connected with their application for a Certificate of Public Good (CPG). Vermont took as much advantage as it could of Entergy's requirement to pay. For example, Entergy had to pay Arnie Gundersen and Peter Bradford $300 an hour to be on the Public Oversight Panel (POP). The POP was a new invention that the state required for this particular CPG application.

As I wrote in my blog post about the lawsuit:

"I don't think Shumlin really understands that the game has changed. The 'Bank of Entergy' is closed to him.....His only source of funding right now is the taxpayer."

Shumlin Attempts to Open the Bank with A Bill of Attainder

Shumlin immediately had an addition placed in another legislative bill. This addition required Entergy to pay Vermont's costs in the lawsuit. In another blog post, I called this an unconstitutional Bill of Attainder law, a law directed at one individual or company. I wasn't the only one to notice this law was immoral and unconstitutional.

Cheryl Hanna of the Vermont Law School posted: It is my humble yet considered judgment that not only is the law unenforceable, but it is also likely unconstitutional.

John McClaughry of the Ethan Allen Institute posted this in Vermont Tiger:

It’s one thing to bill back to a Public Service Board applicant the costs of issuing a final order on its application. But it’s quite another to bill back the state’s legal costs of defending against a litigant whose application the politicians have forbidden the PSB even to rule upon.

Gov. Shumlin’s ethically challenged billback scheme is one more deplorable disgrace to the once honorable state of Vermont.

Shumlin forced the passage of a bad law. It won't stand up to scrutiny. Has anybody in the state government noticed this?

Yes. The Attorney General has noticed.

The Shaky Concept

Today, Terri Hallenbeck of the Burlington Free Press posted: Despite law, Vermont not billing Entergy back for lawsuit.

Here's a quote from that post: Attorney General Bill Sorrell said his office has not billed Entergy back, and he conceded that’s because the concept is shaky.

He said the state is waiting for a verdict in the case and didn’t want to muddy the waters by trying to bill the other party in the meantime. If Entergy prevails in the case, “It’s uphill sledding to suggest they should pay our costs,” Sorrell said. “We would want to take a hard look at the legality of charging them.”

If the state prevails, he said, “We would take a harder look at it than if we lose.”

Translation: That law won't stand up in court. Vermont can't bill Entergy.

In short, the Bank of Entergy is closed to the State. However, I hope and expect that the Vermont Yankee power plant will remain open.

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Photo of Bill Sorrell from VPR article in which Sorrell announced there would be no criminal prosecution of Entergy.

Full Disclosure: John McClaughry is vice president of the Ethan Allen Institute. I am director of the Energy Education Project, which is part of that Institute.