Tuesday, January 3, 2012

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.


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.


Anonymous said...

It's funny. I thought New Englanders were all about liberty, freedom and the Constitution.

Trying to push a law which requires a party in a legal dispute with the state to pay the state's legal bills sure seems like it would be a move worthy of any oppressive regime, a move designed specifically to make it so that no one can ever afford to "petition the government for redress of grievances", because, in the end, what is a lawsuit against the government, other than exactly that?

I'm no lawyer, but not only does it seem unconstitutional as a bill of attainder, but also as a suppression of first amendment rights.

How can Vermont accept having a governor and legislature who think this is OK? Who don't see the obvious constitutional problems with this? I don't know about you, but I don't want public officials who must be *forced* by the courts to follow the Constitution, and defend *everyone's* rights. I want public officials who are dedicated to the constitution and those liberties, who don't think it is OK to pass bills of attainder.

Meredith Angwin said...

Jeff. Do you remember the video clip of Shumlin in one of my blog posts? The one where Shumlin repudiates the state's signature on the Memorandum of Understanding?

In Vermont, Our Word is Our Bond So We Don't Honor Contracts


You commented on that post. Here's a quote from your comment:

Listening to that video, Shumlin's statement reminds me of the sort of bizarre statements I've been hearing in the media recently and in the past from autocratic strongmen.

About your comment today. Yes, I completely agree with you. I find this situation appalling. Not just that Shumlin does not honor the law, but that the legislature obeys him.

Anonymous said...

Oh, sorry to repeat myself. I just can't help thinking such a thing when I hear these things. It's just scary to me.

Well, at least you can't accuse me of being inconsistent lol.

Meredith Angwin said...


I didn't mean to say you repeated yourself! It's scary to me also.

Thank you for your comments!


JD said...


Constitutional issues are usually only obvious when someone does something you disagree with. I don't live in Vermont but I get the impression that a lot of people agree with Shumlin and support his crusade against "Entergy Louisiana". It's no surprise these people don't spend a lot of time wondering whether Vermont is overstepping its bounds when they think it's for the best anyway.

Here's a current non-nuclear example: In the past (~2007-2008) Senate Majority Leader Harry Reid held pro-forma sessions to block recess appoints by then-President Bush. Now, President Obama has ignored ongoing pro-forma sessions and made a recess appointment anyway. Harry Reid has said he supports Obama's decision.

I don't know whether the pro-forma trick should be considered constitutionally legit or not, but the same Republicans that accuse Obama of circumventing constitutional checks and balances probably weren't too happy with Harry Reid a few years ago when he instituting the pro-forma sessions. And Harry Reid probably wouldn't have supported a decision by then-President Bush to make a recess appointment anyway.

Bias is in our nature. It is unavoidable, but manageable. People usually don't make an effort to manage it, though.