Gov. Peter Shumlin said he has not decided whether the state will appeal a federal judge’s decision last week that allows Entergy Corp. to continue to operate Vermont Yankee without legislative approval.
“Obviously the decision from Judge Murtha is a disappointment,” Shumlin said. “We’re exploring all of our options. We’ll make a decision on the appeal within the timeframe allowed by the courts, and until we do I’ll be uncharacteristically quiet.”
The Vermont Attorney General, Bill Sorrell, has 30 days to file an appeal of Judge Garvan Murtha’s decision.
Shumlin commented on the case in his first press conference since the ruling was issued six days prior. Reporters peppered him with questions about how the state would proceed and whether the governor had faith in Sorrell’s ability to win an appeal given his painful defeat last week and two previous high profile cases that he lost before the U.S. Supreme Court — one regarding campaign contribution limits and another prohibiting datamining prescription drug information from doctors. In a report on Tuesday, Dave Gram of the Associated Press detailed how the losses have caused observers to raise doubts about Sorrell’s performance.
Does the governor have confidence in the attorney general, despite his string of defeats?
“This is an absolutely inappropriate time to question our attorney general,” Shumlin said. “They work very hard there and … I really don’t believe it’s healthy to second guess the attorney general. They argued forcefully for the state of Vermont.”
Should the state hire outside counsel to help the attorney general shape an appeal?
Shumlin said Sorrell had done so previously and “we’re certainly open to continuing that going forward. That’s a decision we’ll be making in the coming weeks.”
When asked if cost was a factor, Shumlin initially said it wasn’t his “first consideration.” So far, Sorrell said Entergy has spent more than his annual budget, or about $8 million, on the case, according to the report by Gram.
“The first consideration is how do you take a disappointing decision that doesn’t make a lot of sense and ensure that you proceed in a way that meets the objective of the state of Vermont,” Shumlin said.
The question came up again in a slightly different form. How much more would the state spend?
“Obviously we’re going to spend whatever we need to spend to ensure that Vermonters get a good decision,” Shumlin said. “I’ve read a lot about how much this is going to cost … This year alone, the attorney general brought in about $40 million from the attorney general’s office winning cases — (that’s) a lot more than we’ve spent on legal fees on any cases. So when we have this conversation about cost, it’s very important to know the attorney general’s office has done a good job of winning cases and bringing in more than they pay out.”
Though Shumlin is listed as a defendant in the Entergy lawsuit against the state of Vermont, the attorney general will ultimately decide whether to appeal.
“I have a very good relationship with the attorney general and I appreciate he’s consulted me at every turn in this case,” Shumlin said. “I don’t expect that to change going forward.”
As for whether the nuclear power plant in Vernon will be shut down any time soon, the governor said Judge Murtha’s decision means that Entergy will be able to continue to run Vermont Yankee beyond the March 21 expiration of its license to operate.
Entergy still must obtain a certificate of public good from the Vermont Public Service Board in order to extend the license for the 40-year-old plant another 20 years.
Shumlin said Judge Murtha’s ruling affirms Vermont’s ability to control the destiny of the plant through the Public Service Board process. On Wednesday, the Department of Public Service filed a request for a status conference with the three member board that would occur, he said, “as soon as the 30-day period (for an appeal filing) has expired.”
The governor said whether the appeal and certification process can move forward simultaneously is unresolved.
Reporters wanted to know whether the governor had any regrets about how the Legislature handled the issue. He declined to comment. They then questioned why he appeared to have more faith in the Public Service Board process now than he did a few years ago when as President Pro Tempore of the Senate he spearheaded the 26-4 vote that scuttled Entergy’s opportunity to seek a certificate of public good from the Public Service Board.
Shumlin recounted that James Volz, the chair of the Public Service Board, approached him and House Speaker Shap Smith in 2009 and told the legislative leaders they had to clarify whether the board could take up the case without legislative approval.
“The way Act 160 was written, the Legislature had to make a judgment yes or no,” Shumlin said. “As you know, I thought the answer was no. We didn’t have the option of saying ‘we can’t decide.’”
He pointed out that he wasn’t involved in the drafting of Act 160, which required legislative approval for the continued operation of Vermont Yankee.
“I was not in public service when Act 160 passed,” Shumlin said. “I just want to remind you it was the Legislature at the time and the governor at the time, Gov. Douglas, who signed Act 160. When I took over the Senate, the law said in order for Vermont Yankee to run past its design life it was required that the Legislature vote affirmatively that it was in the best interest of Vermonters or the Public Service Board couldn’t issue a certificate of public good.
“All I did as Senate president was follow the law,” Shumlin said. “I didn’t write the law. I didn’t vote on the law. I inherited the law.”
At the time he said Gov. Jim Douglas and “Entergy Louisiana” were “begging us to vote.”
“They didn’t decide they didn’t want a vote until they thought maybe the outcome wouldn’t be what they wanted.”
Shumlin’s views on Vermont Yankee haven’t changed, he said.
“It has been no secret that I feel strongly it’s in the best interest of Vermont to close the plant on schedule in 2012,” Shumlin said. “What we’re focusing on now is how are we going to get the best decision we can get.”
Editor’s note: Material was added to this story at 5:30 a.m. Jan. 26.
Correction: Entergy has spent $8 million on the case, according to Sorrell.