Shumlin and the Public Service Board

The Many Appeals of Vermont Yankee

On January 19, 2012, Judge Murtha issued his ruling on the Vermont Yankee lawsuit. The decision was mostly in favor of Vermont Yankee. If either side was going to appeal, they had thirty days to do so.

On Saturday, February 18, Vermont Attorney General Sorrell announced he would appeal the decision to the Circuit Court. Sorrell said that he waited until the last minute to file his appeal because he thought Entergy might also choose to appeal.

This was an interesting outcome for a court case: a ruling that both sides might well decide to appeal! As a matter of fact, Monday evening February 27, Entergy asked Judge Murtha to grant an injunction barring Vermont from enforcing laws against storing spent fuel rods at the plant. Many have described this action as an appeal by Entergy. Both sides of the case have now appealed the ruling, though the appeals took place in different ways.

Back to the Original Lawsuit

Most of Judge Murtha’s ruling was clearly in Entergy’s favor, and invalidated the legislature’s many attempts to shut down Vermont Yankee. Entergy still needed a Certificate of Public Good from the state, however. During the lawsuit, Entergy said it did not want to apply for a Certificate of Public Good from the Public Service Board (PSB). Entergy claimed that the PSB docket had been tainted by the ongoing controversy and legislative involvement. However, the Judge’s ruling required Entergy to go before the PSB for a Certificate.

At that point, right after the judge's ruling, Entergy either had to go before the PSB for a Certificate or appeal the ruling to the Circuit Court. Entergy chose to go before the PSB. Meanwhile, the Vermont AG chose to appeal the ruling to the Circuit Court.

The first step in the Public Service Board hearing was a “status hearing” on March 9, 2012 in Montpelier.

Update: My blog about attending this hearing is A Crabby Public Service Board.

Howard's Shaffer's blog on the subjects of the hearing is Back to Square One or Before.

On February 22, the PSB prepared a series of questions for Entergy. One of the questions asked Entergy how it would comply with a state requirement to limit the total amount of spent fuel at Vermont Yankee to the amount generated by March 21, 2012. However, Murtha’s ruling was based on the fact that radiological safety is regulated only by the federal government, not by the state. On this basis, Entergy appealed to Judge Murtha for an injunction against the state forbidding spent fuel storage.

Right now, there are three legal situations in play:

• The Vermont Public Service Board docket about the Certificate of Public Good

• The Vermont AG’s legal appeal to the federal circuit court to overturn Judge Murtha’s decision

• Entergy’s appeal to Judge Murtha for an injunction to forbid the state to limit spent fuel storage.

Public Service Board History and Issues

In fall of 2009, the PSB was ready to issue its findings on the Vermont Yankee Certificate of Public Good. However, it was forbidden to do so by the legislature, according to Act 160. Judge Murtha’s decision invalidated the ability of the legislature to prevent the PSB from releasing its findings. Now, the Certificate question is once more in front of the PSB. Of course, it has gotten more complicated.

What Docket? New Hearings? Entergy asked the PSB to issue the Certificate findings they assessed in 2009, without further hearings on the docket. Plant opponents asked the PSB to re-open the hearings to new testimony.

What Docket? New Hearings? Phase Two: The PSB asked Entergy if the original docket was so tainted (as claimed in the court case) that the PSB needed to open a new docket.

Spent Fuel. The PSB has asked Entergy what it plans to do with the spent fuel that will be created by operation after March 21. Spent fuel storage past March 21 was not in the original memorandum.

Spent Fuel Phase 2: Entergy has asked for an injunction to prevent the state from refusing to let them store spent fuel. If the state refused to let Vermont Yankee store spent fuel, the state would de facto shut down the plant for radiological reasons.

Timing: By law, an existing certificate of public good does not expire while PSB hearings are still on-going. However, the PSB’s recent questions to Entergy imply that the PSB thinks that the Entergy certificate might end on March 21, despite the Board not having ruled on it.

Potential Problems with the Public Service Board

Kevin Ellis is a top executive with KSE Partners, a lobbying and communications firm in Montpelier. In an article by John Gregg of the Valley News, Ellis said that Shumlin could prevent Entergy from emerging with a clear win from the Public Service Board. As Ellis said: “I would never bet against the governor on this. He brings the apparatus to bear … way down into the backrooms of politics, where Peter Shumlin is at his best.” That is a frightening thought about the PSB process in this state. The PSB is supposed to be a quasi-judicial, non-political body.

However, Ellis said aloud what many people think privately. This may be part of the reason there are three separate court actions pending now.

Update: Shumlin said it aloud, also. In an interview with the VPR, Shumlin said: "Judge Murtha has issued a decision that clearly gives them the authority to continue to operate pending a decision by the Public Service Board. I have a lot of confidence in the Public Service Board. We're going to be working together with them, my department to try and get a better outcome than what Judge Murtha gave us."

Clearly, there's no room in Governor Shumlin's life for independent judicial bodies. Shumlin and his team are on the case to control those guys! (Hmm..didn't Vermont just lose a court case about something similar??)

Problems with the Judicial Appeal

All three court cases are related and interlocking. For example, the AGs appeal could backfire on Vermont. The federal appeals judge could remove the decision-making power from the PSB, especially if the PSB was regulating on the basis of radiological safety. If the state attempts to determine what amount of spent fuel can be stored on-site, that would almost certainly be seen as regulating on radiological safety.

As Vermont Law School Professor Cheryl Hanna said in a Burlington Free Press article by Terri Hallenbeck:

Hanna said she’s not taking sides on whether the state should or shouldn’t appeal, but she warned that the odds are against the state. Among the risks in appealing, she said, are that the appeals court could go farther than Murtha’s decision and decide that even the Public Service Board doesn’t have a say in Vermont Yankee’s future. Though Entergy had argued against it, Murtha left the case in the Public Service Board’s hands.

It is hard to say what will happen with the federal appeal, but it doesn’t look good for the Vermont AGs case.

As Yogi Berra said: It’s tough to make predictions, especially about the future.

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Murtha Decision and the Vermont appeals document can both be downloaded from links within this excellent article from Vermont Digger.

Public Service Board questions to Entergy

Kevin Ellis Quote in John Gregg article the Valley News

Hanna quote that appeal could go further for Entergy than the Murtha decision went:

This article originally appeared in True North Reports and has been somewhat updated.

I scheduled this post for today because there is supposed to be a PSB hearing today. This post is more "background" than "breaking news."