Contact :
Robb Kidd, (802) 223-7222,robb@ruralvermont.org

In light of the overwhelming passage of legislation favoring Industrial Hemp farming, Rural Vermont is pleased to see that Vermont farmers are now one step closer to growing hemp. The recent passage of H.747 authorizes the Vermont Agency of Agriculture to begin the process of allowing Vermont farmers the economic opportunity to cultivate Industrial Hemp. Although, the legislation is still dependant on the removal of federal prohibitions, Rural Vermont is pleased that a third consecutive Vermont Legislative Biennium overwhelming displayed strong support for Vermont farmers to cultivate industrial hemp as a cash crop.

In celebration of Hemp History Week (June 4- June 11) Rural Vermont will host a special presentation on the economic potential of industrial hemp with Netaka White on Wednesday June 6 at 7:00 pm. The talk and discussion will be held at the Addison County Regional Planning Commission office on Seminary Street in Middlebury, VT. The discussion will highlight the uses of industrial hemp and how the crop can fit into Vermont’s agricultural landscape and economy. A review of current state and federal hemp policy will also be discussed.

Netaka White is the BioenergyProgram Director at the Vermont Sustainable Jobs Fund, and heads up the Vermont Bioenergy Initiative (VBI). The VBI provides grants and technical assistance to Vermont farms and businesses in order to increase the local production and local use of sustainable bioenergy fuels and feedstocks. Says White, “The Vermont Legislature has once again shown their leadership on the hemp issue. The Sustainable Jobs Fund is optimistic that before long, industrial hemp will be an additional source of local food, oil, energy, livestock feed, and jobs. In my mind, it’s no longer a question of ‘if’ Vermont farmers will have the ability to grow hemp and contribute to our agricultural economy, but when.”

Rural Vermont has been advocating with Vermont farmers to once again allow for the cultivation of industrial hemp. “Rural Vermont’s hemp campaign has been energized by grassroots activists from Brattleboro to Warren who want the ability to cultivate hemp just as our Canadian neighbors are allowed to,” states Robb Kidd, Rural Vermont Organizer. In 2008, Rural Vermont was the lead advocate in promoting the Vermont Industrial Hemp Bill, Act 212. However, Act 212 only allows Vermont farmers to grow industrial hemp once federal regulations permit it. As an affirmation, in 2009 Rural Vermont urged passage of a joint resolution directing the federal government and the federal delegation to legalize the growing of industrial hemp.

In the summer of 2011, Rural Vermont supporters successfully convinced Congressman Peter Welch to co-sponsor the Industrial Hemp Farming Act, H.R.1831 in the U.S. House of Representatives. “Vermont farmers and businesses are left with an unnecessary competitive disadvantage in developing a valuable and diversified crop, and in order for Vermont farmers to benefit, Vermont’s Congressional leaders will need to work to remove the federal prohibition,” Kidd also stated.

Rural Vermont is a nonprofit advocacy group led by farmers since 1985 that educates, activates and advocates for living soils, thriving farms, and healthy communities. For more information, call (802) 223-7222, visit www.ruralvermont.org, or email robb@ruralvermont.org.

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VTDigger

Sen. Dick Sears, right, and Gov. Peter Shumlin. Photo by Taylor Dobbs

It’s an epidemic.

Or perhaps it isn’t.

It’s killing Vermonters.

Probably, but nobody knows how many.

And it has several Vermont office-holders – starting with Gov. Peter Shumlin – in such a tizzy that they’re attacking one another.

Not that there’s anything new about politicians attacking one another. Republicans and Democrats do it all the time. But this spat does not pit Democrat Shumlin against his Republican opponent, Sen. Randy Brock of St. Albans. They’re on the same side. This is Democrats versus Democrats, basically Shumlin and the Senate against the House leadership.

Though the details are complex, the basics are simple: Some Vermonters are addicted to prescription drugs, and are getting them by illegal acquisition, theft, or various forms of chicanery.

By common consent, this is a serious problem, and the state has been dealing with it, both by expanding treatment through the Health Department and beefing up law enforcement.

In the recently concluded legislative session, lawmakers agreed on several provisions of a comprehensive bill that would make it more difficult for people to circumvent the security restrictions of the prescription drug system.

But on one item, they could not agree: whether the police should be allowed entry into the Vermont Prescription Monitoring System (VPMS), which records information on all prescriptions of Class 2, 3, and 4 drugs, without first getting a warrant.

The Senate wanted to give law enforcement that power. The House did not. The two sides could not reach agreement. The result? No bill at all, and one very angry governor.

“Those who didn’t pass the bill will regret it, and will be back next January perhaps more ready do the right thing.” Shumlin said in his last day remarks to the Senate. He added that prescription drug abuse was so “pervasive” in Vermont that probably no one in the state did not have a “family member, friend, neighbor” whose home, car, or business had not been “robbed by those who are addicted.”

A few days later, Shumlin was even harsher. Directly targeting “the House leadership,” (though not naming Speaker Shap Smith), Shumlin said, “The fact that the House didn’t agree with the Senate version of that bill, I think, is inexcusable. I think Vermonters will die because of it.”

The governor, said his spokesperson, Susan Allen, “feels strongly” about the matter.

When politicians feel strongly, they tend to speak hyperbolically. Actual data would indicate that in a state where burglary and most other crimes are on the decline, relatively few Vermonters have been impacted by prescription drug abuse, even with their friends, relatives and neighbors included.

Among the kinds of crime that are becoming less frequent is – as it happens – prescription drug abuse. According to the state Health Department, “the prevalence of prescription drug misuse in Vermont is declining or remaining steady for all drug categories.”

The Health Department’s latest figures, based on 2009 research by the federal government, indicates that 4.6 percent of adult Vermonters used prescription drugs improperly. That’s a small percentage, but it’s more than 23,000 people.

Vermont Department of Health Commissioner Harry Chen. VTD/Alan Panebaker

Or is it? When it comes to prescription drug abuse, opinions are firm but data are murky. That 4.6 percent figure, for instance, includes “people who have (improperly) used a prescription drug once as well as people who have a more serious problem,” said Barbara Cimaglio, the deputy commissioner for Drug and Alcohol Abuse Programs.

So the total includes the guy who hurt his back one day and used the prescription painkiller his wife got when she had her tooth pulled as well as the young tough breaking into a pharmacy to steal prescription drugs or into a home to steal money so he can buy the drugs on the black market.

And while the young tough is a danger to the people whose home he burgles, his situation is not really relevant to the controversy over whether the database should be searchable without a warrant. He’s not gaming the state’s prescription drug system. According to Public Safety Commissioner Keith Flynn, those street-corner purchases are probably (though here, too, the data don’t really prove the point) the way most Vermont prescription drug abusers get their goods. If that’s the case, the VPMS – and the squabble over warrants – applies to only a minor portion of the state’s drug abuse problem.

Cimaglio said many abusers in Vermont are otherwise law-abiding, respectable, usually middle-aged, people who grew dependant on pain-killers legally prescribed for them after injury or surgery. Some of them then do try to circumvent a system by getting friends or relatives to feign injury or illness so they can get painkillers prescribed, or by “doctor shopping,” trying to get duplicate prescriptions from several doctors.

These cases might show up on the VPMS database. On the other hand, these middle-aged people are probably not among those breaking into stores or houses. They may be among those buying drugs on the street corners, often from gang members who come to Vermont from southern New England or New York.

The data don’t really support – though they don’t conclusively refute – Shumlin’s prediction that “Vermonters will die” because the Legislature didn’t pass the bill. Vermonters do die from drug abuse. More than 100 died last year, but Public Safety Commissioner Keith Flynn said it was impossible to determine precisely how many died solely or even primarily from misuse of prescription drugs.

Of the 108 Vermonters who died of drug-related causes last year, 60 were accidents, said Flynn (citing figures from the Health Department’s Medical Examiner’s office), 18 involved “illicit substances,” though not necessarily prescription drugs.

The suggestion that there will be more such deaths without allowing police to get into the data base without a warrant would seem to lie on the spectrum somewhere between conjecture and demagoguery.

By squabbling over the warrant issue, officials convey the impression that they believe the drug problem to be solvable by law enforcement. They do not.

“We can’t fix this problem through arresting people,” said Rep. Ann Pugh, the South Burlington Democrat who chairs the House Human Services Committee. “This is a public health issue. People need treatment.”

Rep. Ann Pugh, center, discusses a bill dealing with access by law enforcement to prescription drug data. VTD/Alan Panebaker

Sen. Dick Sears, the North Bennington Democrat who chairs the Senate Judiciary Committee and favors the warrantless searches as firmly as Pugh opposes them, agrees. A bill he sponsored this year, which did pass, provides for both stricter enforcement of gang-related prescription drug offenses and more treatment of addicts.

But both sides also agree that tighter law enforcement is needed, and even that police should be able to check the VPMS. They only disagree about whether law enforcement officers should first have to get a warrant.

“A lot of time the information we get from medical providers will not be in and of itself evidence of a crime,” Flynn said, and therefore would not justify getting a warrant. “Many times if we get a report (saying) this person … seems to be using abnormal amount of this drug.” If police could get into the system at that point, he said, they might be able to help the addict before he or she gets into worse legal trouble.

Sears, upset that some critics claimed that the Senate bill would allow “unfettered access” to the VPMS, said the Senate bill would provide “more protection for privacy” than a warrant requirement. Under the Senate bill, he said, “just four specially trained drug investigators” could get access to the database, and only after getting a tip from a druggist or health care provider. They would be liable for criminal prosecution if they broke those rules, he said.

But this was not enough protection for House leaders such as Pugh and Judiciary Committee Chair William Lippert of Hinesburg.

“Warrants are regularly applied for by law enforcement when they want to pierce the search and seizure protections” of the Constitution, he said. “We believe private, personal medical records are an extension of the privacy expectations of Vermonters.”

Furthermore, Lippert said, his committee had been warned that a warrantless search would immediately be challenged in court on constitutional grounds.

If precedent is any guide, that challenge would likely fail. Since 1904, Flynn said, Vermont law has allowed any law enforcement officer to walk into any drug store and see anyone’s prescription file, without a warrant, without even having to give the druggist a reason. When that law was challenged, in 1992, the challenge failed, if only by a 3-2 vote.

In State versus Welch, the Vermont Supreme Court agreed with the U.S. Supreme Court that the prescription drug industry was so “pervasively regulated” that neither druggists nor customers had any “expectation of privacy.”

As Lippert pointed out, that decision predates development of the drug database as well as congressional passage in 1996 of the Health Insurance Portability and Accountability Act (HIPPA) designed to enhance patient privacy. It is hard to predict whether the court would issue the same ruling today, or whether the Legislature would vote today to give law enforcement that power to see everyone’s drug records. Though no one has taken a poll, it is reasonable to suspect that most Vermonters think they have – or at least that they should have – an “expectation of privacy” about records that the court acknowledged “contain extremely private and potentially embarrassing information.”

This battle is likely to be resumed next year, if not earlier, with all contestants remaking all points.

With one point continuing not to be made. Both Sears and Flynn said outside gang members who peddle prescription drugs are attracted to Vermont for two reasons: because there are potential customers here, and because it’s very easy to get guns in Vermont.

Raising an interesting question: Would moderate gun control laws similar to those in neighboring states be as effective in combating prescription drug abuse as allowing police to get into the VMPS without a warrant?

Don’t expect any elected official to bring that up.

VTDigger

Sen. Dick Sears, chair of the Senate Committee on Judiciary. VTD/Alan Panebaker

This legislative session, two judicial issues captured the headlines — the death with dignity bill and a proposal to allow police access to the state’s prescription drug database. Both attempts at sweeping reforms failed.

A number of other changes to the legal system addressed by the Legislature’s Senate and House judiciary committees have garnered little attention. This session lawmakers approved changes to divorce proceedings for gays, criminal record expungement and new child-support enforcement rules, highway condemnation requirements and search and rescue protocols.

Though these pieces of legislation may not have hit the media spotlight, many will have real-world consequences for Vermonters. Some are designed to protect the vulnerable; others make it harder for individuals to flout the law.

H.413 will allow the state to assess fines on nursing homes for cases of abuse

One of the new public safety bills that expands the attorney general’s authority to prosecute abuse of vulnerable adults — went into effect on Tuesday when Gov. Peter Shumlin signed H.413 into law at a senior center in Shelburne.

At a press conference and bill signing at Shelburne Bay Senior Living Community, Shumlin told the story of 81-year-old Daniel Wright who died shortly after moving into Green Mountain Nursing Home in Colchester in 2005. Wright was assaulted by another resident who had dementia and had a history of violence against staff and other patients. The perpetrator’s mental state made prosecution impossible. A subsequent case involving Wright’s family and the home was settled out of court.

Shumlin said though the nursing home staff did not deal the deathblow against Wright, they failed in other areas.

“None of the prior assaults upon residents had been reported as required by both state and federal law,” he said. “They were covered up. The nursing home had taken no steps to protect its residents and gave no special orders for supervisors so that other residents wouldn’t be harmed. … On the day of the assaults, nursing staff failed to take Mr. Wright’s vital signs and failed to notify the physicians of the assaults that he had endured. After his death, they failed to notify the medical examiner.”

Shumlin did not name Green Mountain Nursing Home in his speech. Sorrell confirmed Wright was a resident of the home.

Robert Sterling, administrator of Green Mountain Nursing Home, said he understood Wright’s case differently. “He died, according to the autopsy of natural causes and everything,” Sterling said.

Vermont AG William Sorrell. VTD/Josh Larkin

Wright’s death was one of the cases that spurred the attorney general’s office to seek a legislative remedy.

Assistant Attorney General Linda Purdy, who investigated the case, said autopsy results stated Wright’s primary cause of death was natural, but his conditions were complicated by the assaults.

“He died of both some cardiovascular problems and the secondary cause, which they couldn’t really quantify, was the attack and the injuries he sustained,” Purdy said.

The nursing home’s attorney, Scott McGee, said that despite the tragic nature of the events, staff at the home were all doing their jobs correctly. “As far as we were concerned, all the right steps had been taken,” McGee said. “In these kinds of things, people can second-guess lots of steps. Everyone was working in good faith.”

Sorrell’s office threatened a civil action against the nursing home, but found they didn’t have strong legal footing to do so.

“We wanted more clear legal authority to bring such a suit,” he said.

H.413 does exactly that, Sorrell said. Under the new law, the state may bring a civil action of up to $50,000 against a nursing home or individual caretaker where neglect, abuse or exploitation results in death and other actions for lesser amounts when the victim survives.

H.535, Bias-free policing

For the first time, local law enforcement will be required to adopt bias-free policing policies and to collect racial information from routine traffic stops.

H.535 requires all Vermont law enforcement agencies to implement “bias-free” policing policies designed to deter police from racial discrimination. The policies would be based on Vermont State Police guidelines and recommendations the Attorney General’s office made to the state’s 73 independent policing entities in 2010. About 30 municipal police and sheriffs departments have policies addressing racial discrimination.

The growing disproportionate representation of blacks in prison has raised questions about racial bias among law enforcement officials and the court system.

H.758, dissolution and divorce

Gays from out of state who obtain civil unions or marriage certificates from Vermont have had no way of dissolving that union or divorcing in home states that didn’t recognize their Vermont status.

This bill makes it possible for couples to break up through a no-fault process based on mutual agreement.

Previously under Vermont law, gay couples had to live in Vermont for six months before they could get a divorce or dissolution.

S.37, expungement of a nonviolent misdemeanor criminal record

This bill creates a process for expunging the record of an arrest or conviction for many nonviolent misdemeanors.

Sen. Dick Sears, D-Bennington, says he supported the legislation because he heard from Vermonters who had been arrested and convicted of minor crimes 20 to 30 years ago for possession of small amounts of marijuana and other petty offenses but who hadn’t been in trouble with the law for decades and wanted to apply to have their records expunged.

“The bill provides a process for people to apply to state’s attorney in the county where they were convicted,” Sears said. “If they are clean of any crime for 10 years or more … they can apply to have the record expunged.”

The basic conditions? Ten years must have elapsed, any sentence must have been completed, restitution paid or conditions met and there can have been no subsequent criminal convictions. The final decision is at the discretion of the court.

Certain offenses, such as sexual exploitation of children and violation of a protection order, cannot be expunged.

When the court decides in favor of removing the criminal record, it issues a certificate that “must state that such person’s behavior after the conviction has warranted the issuance of the order.” The FBI and all other agencies which have or might have the record are notified. The statute requires that from the time the certificate is issued the person “be treated in all respects as if he or she had never been arrested, convicted or sentenced for the offense.”

S.203, child support enforcement

According to a report from the Department of Children and Families, about 30 percent of court-ordered child support goes unpaid each month. The state of Vermont has nearly $100 million in unpaid child support on the books.

Under a new statute, parents who refuse to pay child support may be subject to civil contempt. If the court finds the individual in contempt, he or she may be required to search for work, participate in employment, educational, or training-related activities. If the individual fails to complete the court-ordered program, he or she may be subject to incarceration.

Sears said, under the new provisions, the nonpaying parent “holds the keys to jail cell” — he or she can be released from prison by paying up or complying with the court’s recommendation.

While the state can’t hold someone in jail for lack of funds, it can detain an individual for contempt of court.

Though scofflaws wouldn’t be held for long, Sears said “it’s enough to grab some people’s attention.”

The legislation softens requirements for parents who are willing to make payments but who have been hurt by the economic downturn, Sears said.

The bill also revises the options for calculating available income in determining child support, and it makes it easier to get relief from a default child support order if the parent can show the court used incorrect financial information in calculating income.

S.122, human trafficking, prostitution provision

If someone is convicted of prostitution and can show they have been a victim of human trafficking, the court can allow the individual to file a motion to vacate.

Once the motion is granted, the victim’s name is removed from all the related court records.

The victim need not have reported the crime of human trafficking to law enforcement before the arrest. Various protections are now offered to victims of human trafficking that parallel those provided for victims of domestic violence, sexual assault and stalking, such as providing lists of counseling and shelter services. State services will now be revised to meet the needs of human trafficking victims.

S.115, a bill barring ineffective assistance claims against assigned counsel

Some defendants have sought to hamper the criminal justice process by suing assigned defense attorneys who were in the middle of litigating their cases, according to Defender General Matthew Valerio.

Valerio says S.115 bars defendants from inappropriately manipulating the system. “Now you have to follow the normal process and get redress through courts before suing your attorney,” he said.

“It doesn’t take away your rights to pursue a negligence case, it just tells you what order it has to be done in and by doing that it prevents individuals who for the wrong reasons are attempting to manipulate the criminal justice system,” Valerio said.

Valerio’s office hires more than 50 lawyers a year to work on contract with the state. These attorneys have to purchase their own malpractice insurance. There was a concern that the lawsuits against some contract attorneys who are doing serious felony work with the most difficult clients and getting a number of claims could get to point where it would be difficult to obtain malpractice insurance.

Convicted criminals had been taking a page from Michael Brillon, who was sent to jail on a domestic violence charge and went through six assigned public defenders. His case went to the Vermont Supreme Court, which ruled that his right to a speedy trial had been hampered, and eventually the U.S. Supreme Court, where justices ruled that “delay caused by the defense weighs against the defendant.”

H.751, juvenile delinquent custody

This legislation allows 16- to 17-year olds who have committed minor crimes the option to stay in state custody and receive services for an additional six months.

That additional time could make a difference for some kids, Sears said. The bill also calls for a study to evaluate the success rate of the juvenile system.

Editor’s note: This story was updated between 5:15 a.m. and 6:30 a.m. May 16.

VTDigger

A growing number of homes and other buildings connected to the grid are using solar panels, without the hassles or expenses of a bank of batteries in the basement or a backup generator in a shed. Photo by Jodie van de Wetering.

The most prominent energy issues in the Vermont Legislature this year seem to be the ones that didn’t happen.

For what seemed like half the session, lawmakers quibbled over whether to intervene in a Public Service Board docket to require utilities to give $21 million in windfall money to ratepayers. That legislation never came to fruition.

The House spent a large part of the session polishing a law that would require the state’s utilities to purchase set amounts of renewable energy. That big energy bill barely made it through, and when it did, the renewable energy mandate was stripped out.

And the state led the nation in banning the controversial practice of hydraulic fracturing for natural gas.

In the end, the Legislature passed an energy bill and decided not to meddle in the affairs of the Public Service Board. And it sent a resounding message to the natural gas industry: frack no.

The Merger Windfall Money

No issue appeared to stir more controversy this year than the debate over whether the state’s two largest utilities should be allowed to recoup millions of dollars in windfall money once they merge.

The controversy hinged on whether the Legislature should direct the Public Service Board, a quasi-judicial entity, on how to deal with the issue.

A group of four lawmakers in the House and many in the Senate fought hard to ensure that Green Mountain Power and Central Vermont Public Service Corp. could not recover money in rates that was supposed to go to their customers when they enter a profitable merger.

Gov. Peter Shumlin and House Speaker Shap Smith opposed the legislative intervention, and in the end about 50 lawmakers signed a letter to the Vermont Department of Public Service asking the agency and utilities to consider their concerns.

The controversy stems from the 1990s when the state utilities entered a losing contract with Hydro-Quebec. In 2001, when they were on the verge of bankruptcy, the Public Service Board allowed the utilities to raise rates on the condition that if they were sold they would have to share profits with ratepayers, hence the $21 million. In 2007, when Green Mountain Power sold to
Gaz Metro, a Canadian utility, it invested that windfall money in an efficiency fund and recovered it in rates. An agreement with the Department of Public Service would allow a similar mechanism with the pending merger. Around $12 million would go to weatherization programs.

Once lawmakers realized the utilities would get that money back through rates, it turned into a juggling act of trying to pass some sort of legislation that would demand a cash payout or rebate to ratepayers without undermining the board’s authority.

When the final gavel fell, none of these measures made it through.

The Senate had attached an amendment to the budget that would not prohibit the utilities from recouping the money in rates. That language came out in a conference committee.

The House passed a similar amendment on a Public Service Board housekeeping bill that would not allow utilities to recover in rates investments in weatherization that did not benefit the electric system (like home insulation projects where the homeowner heats with fuel oil). That bill never made its way out of the Senate.

When all was said and done, the governor and his administration got their way. The Public Service Board will be the final arbiter.

State Ownership of VELCO Study

Three senators championed a bill that would require the state to study the feasibility of state ownership of up to 51 percent of the state’s electric transmission system.

Sens. Tim Ashe, Vince Illuzzi and Peter Galbraith proposed looking into government ownership of Transco, the state’s transmission assets, and Vermont Electric Power Co. (VELCO), the utility that oversees Transco. Governance of that system is based on how much of the retail market share utilities have. After the merger, Green Mountain Power and CVPS, both owned by Gaz Metro, would control the transmission system.

The Vermont Department of Public Service struck an agreement with the utilities to divest part of that control and allow for “public good directors” on the VELCO board.

But the senators said the state should try to take advantage of the favorable return on transmission investments and consider giving itself a greater say in future projects.

The proposal met stiff opposition from utilities, and the state treasurer and a state-contracted financial adviser recommended against it.

Ultimately, that proposal never made it anywhere.

Energy Bill Squeaks By With No Renewable Portfolio Standard

The House Committee on Natural Resources and Energy worked for months on legislation that would create a renewable portfolio standard, requiring Vermont utilities to purchase and account for renewable energy.

That bill passed the House, twice — first as House Bill 468, then as a strike-all to a bill dealing with smart meters.

In the last week of the session, renewable energy developers and House representatives who had spent many hours crafting the bill grew concerned the legislation would not make it out of the Senate.

In the end, the Legislature settled on a compromise that would expand the state’s Standard Offer program, which incentivizes in-state renewable projects through guaranteed favorable contracts.

Associated Industries of Vermont and other business groups criticized the renewable mandate. They say it will increase rates for customers without making a significant reduction in greenhouse gases.

Others say the renewable portfolio standard was the linchpin of the energy bill. Without it, utilities are able to sell renewable energy credits to states like Massachusetts and Connecticut. Under a regional accounting mechanism, this means power coming from a Vermont wind or solar project would be considered “brown” power, as if it came from a fossil fuel or nuclear plant.

Vermont Leads the Nation in Fracking Ban

If Gov. Peter Shumlin signs a bill banning the controversial practice of hydraulic fracturing for natural gas, as he is expected to, Vermont will be the first state in the nation to do so.

Environmental groups pushed the legislation, which is largely a symbolic measure, given the limited potential for natural gas extraction in the state, although geologist Laurence Becker said there could be deposits in the northwest part of the state.

As voted out of the House, the bill would have put a three-year moratorium in place. During that time, the state would have allowed the Vermont Agency of Natural Resources to update its regulations on underground injection wells and permit the federal Environmental Protection Agency to complete studies on the potential environmental effects of the practice, which was exempted from the Safe Drinking Water Act during the Bush administration.

The Senate took the more forceful approach of an outright ban.

Ultimately, the Legislature compromised — going with a ban but also requiring a study of the potential effects of the practice on groundwater.

Representatives for the American Petroleum Institute say the ban is unwise, given the jury is still out on the potential harms of fracking. They say the state is eliminating a potential economic resource that could help farmers earn extra income on their land.

Legislature Ditches Smart Meter Opt Out Fee

Vermonters who are concerned about radio frequencies or privacy issues won’t have to pay to opt out of programs by utilities to install “smart meters.”

The smart meters use small radio frequencies, like cell phones, to send data. That data allows utilities to monitor electric usage more closely and respond to outages sooner. Utilities say the meters will eventually help customers better manage their electricity use. For example, they could not run appliances at high demand times when electricity is the most expensive and comes from the dirtiest sources.

Green Mountain Power and CVPS planned to require a $10 fee for opting out of having a smart meter. That fee would have gone toward paying employees to read traditional analog meters manually.

Critics of smart meters say the technology could cause health problems and present possible privacy issues given the granular data they could eventually produce. More advanced meters can tell which appliances are in use at certain times in a home.

VTDigger

Senate President Pro Tem John Campbell. VTD/Alan Panebaker

Statehouse leaders came together for a press conference on Wednesday to mark their many joint accomplishments this legislative session, but the conversation revisited one issue that appears will be an ongoing disagreement that will bleed into the next biennium.

House Speaker Shap Smith and Senate President Pro Tem John Campbell told reporters they are most proud of their efforts to reform the health care system, balance the budget, redraw the boundaries for House and Senate seats and help rebuild Vermont after Tropical Storm Irene.

They had much to agree on — including an ambitious proposal to reform the state’s sales tax system next year.

But when it came down to one of the remaining unresolved issues of the session — prescription drug monitoring — the two leaders openly disagreed in front of the TV cameras. It was a rare public instance of discord between Smith and Campbell, but both men have staked out positions they feel passionately about.

Legislation that originated from the Shumlin administration, which would have given law enforcement access to records from the state’s prescription drug database, ultimately floundered when members of the House and Senate conference committees couldn’t agree. The House wanted police to obtain warrants before running searches; the Senate opposed that requirement.

If Gov. Peter Shumlin’s failed last-minute effort to apply public pressure on the House to abandon that position is any indication, the “epidemic” of prescription drug use will likely become a campaign issue, according to Kristin Carlson of WCAX.

Smith compared the drug monitoring debate in the House to the discussion on vaccines because he said both were about “the balance between public benefit and individual liberties.”

“Members of the House felt strongly, they had a real concern about a reaching in to the prescription drug database by law enforcement,” Smith said. “It was a real challenge to see if there was any opportunity for compromise.”

The Speaker said he didn’t want to diminish concerns expressed by the governor and senators about the “epidemic” of prescription drug abuse in Vermont, but he said they’d have to find an approach that didn’t impinge on personal privacy.

Campbell openly lamented the Senate’s inability to move H.745 forward in his end of session farewell speech on May 5, and his frustration over the issue hadn’t abated four days later.

The Windsor Democrat said House members didn’t “understand” the legal ramifications of probable cause and reasonable belief. Campbell in turn blamed House members, the Vermont ACLU and some of the people who gave testimony for causing confusion about what he believes is the real issue: A need to clarify how the search process would work.

“Some of the issues the ACLU brought up were dealt with, but they were still on people’s minds,” Campbell said.

Campbell advocated for bringing together law enforcement, the ACLU and others. “It’s hard to understand without everyone in the same room,” he said.

When asked whether he thought House members were confused, Smith replied: “I think there wasn’t any confusion. People saw this issue through different philosophical lenses.”

The two men amicably agreed to disagree and then moved on to other topics.

House Speaker Shap Smith. VTD/Josh Larkin

The surprise of the presser? An open declaration that not only would Smith pursue sales tax reforms that would include cloud computing, but also that he would use it as a campaign issue. Smith said he wants to lower the sales tax to a nominal amount, from 6 percent to a much lower amount suggested by the Blue Ribbon Tax Structure Commission (between 1 percent and 2 percent) and expand the assessment to services. The sales tax currently applies largely to goods.

Smith said he supports a tax on cloud computing.

“My feeling is software that is delivered from the cloud should be treated in the same way as software bought at Staples,” he said. “The cloud issue illustrates the challenge we have with the tax structure. Now we have the opportunity to look more broadly at this issue, which isn’t going to get any easier. With the changing economy, we need to take a deep dive into these issues.”

Campbell said comprehensive reform of the sales tax issue is “not only important but also essential.” Last year, Campbell was outspoken about his opposition to the sales tax expansion proposal from the commission.

Here are the legislative accomplishments Smith and Campbell touted:

• Funding for rebuilding state infrastructure after Tropical Storm Irene ($15 million of any surplus funds in fiscal year 2012 and $12 million in redirected capital budget funds).
• Redistricting House and Senate seats in a “nonpartisan” manner (the state has a lone U.S. congressman, so is not subject to federal reapportionment requirements).
• “Pulling the trigger” on the mental health issue, as Campbell put it, by planning to build a state psychiatric facility and substituting a number of institutional psychiatric beds with community mental health services.
• Balancing a budget that started out with a $65 million deficit. “That’s a testament to our good fiscal stewardship,” Smith said.
• Providing “property tax relief” to taxpayers by shoring up the Education Fund transfer from the General Fund with 50 percent of any surplus funds in fiscal year 2013. The transfer amount was eroded when lawmakers agreed last year to “rebase” it to 2008 levels, creating a $27.5 million reduction in the transfer.
• A ban on fracking for oil and gas in Vermont and new protections for Vermont’s rivers and streams and Lake Champlain.

A reporter asked the two men what unfinished business they were most concerned about, Campbell said he was disappointed they weren’t able to get the “fair share” legislation out. The provision would have allowed the Vermont-NEA to collect dues from non-union members who take advantage of union activities. He said the measure would be his No. 1 priority in the next legislative session.

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Vermont Yankee on the banks of the Connecticut River

The state Department of Public Service is scrutinizing recent actions by Entergy Corp.

The department is questioning whether the 20-year license extension the Nuclear Regulatory Commission issued the company in 2011 is valid.

State officials say Entergy doesn’t have a Clean Water Act permit.

Sarah Hofmann, deputy commissioner of the Department of Public Service, said the federal NRC should have required the company to get certification from the state that the plant would not violate state water quality standards.

“Our allegation is that they needed to have that in order to get their license renewed,” Hofmann said. “Entergy’s claim is that they are still operating under their old one.”

Elizabeth Miller, commissioner of the Department of Public Service, will be presenting oral arguments to the U.S. Court of Appeals in Washington on Wednesday.

Vermont Yankee was originally scheduled to shut down in March of this year. Entergy continues to run the 40-year-old plant because it has the NRC license and a federal judge ruled in January that the state doesn’t have the authority to pre-empt federal law.

Entergy bought the plant in 2002, and applied for a new license in 2006. In 2010, the Vermont Senate voted against allowing the Public Service Board to issue a new license. That decision was based on a 2006 law allowing legislative approval. Earlier this year federal district court Judge Garvan Murtha found the state law unconstitutional, ruling that it was pre-empted by federal statutes. The Vermont Attorney General has appealed that decision.

Entergy recently requested approval for a certificate of public good from the Vermont Public Service Board.

A lot hangs in the balance in the legal arena — and with Vermont Yankee’s financial situation.

A decision in federal court could affect the outcome of the Public Service Board proceeding, and what the D.C. Circuit decides could affect the plant’s federal permit.

It appears that Entergy is also trying to spin off its transmission business and merge it with a separate company called ITC holdings. According to an Entergy spokesman, however, this will likely not affect Vermont at all.

On April 30, ISO-New England, the region’s electric grid operator, accepted a bid by Entergy to de-list the Vernon plant from its 2015-16 “capacity commitment period.” ISO-New England rejected previous requests from Vermont Yankee to be removed from the futures market.

But in its most recent filing with the Federal Energy Regulatory Commission, it stated “the ISO determined that Vermont Yankee is not needed for reliability for the 2015-16 Capacity Commitment Period.”

ISO New England stated that was because it expects transmission upgrades and other resources to be in place by that time.

The one thing that does appear certain is that the plant will continue operating while the legal and regulatory proceedings are pending.

Public Service Board decision in 2013, at the earliest

Wrangling over Vermont Yankee’s new permit will last late into 2013, at least, under a calendar set by the Public Service Board.

For some parties in the Public Service Board docket, the schedule set by the board drags it out too far.

“It’s taking too long,” said Sandra Levine, senior attorney for the Conservation Law Foundation in Vermont. “This case could easily be decided in less than a year and a half. Entergy is dragging its feet.”

The amended schedule sets a deadline for intervenors at June 18. Final filings are due Aug. 26, 2013, hence the year and a half timeline.

Entergy requested the later time line, telling the board it could not prepare testimony until June 29. The Department of Public Service, which represents Vermont ratepayers in front of the board, asked for a May 15 filing date.

CLF’s proposed schedule, which the board rejected, advanced hearings by four months.

The board will hold public hearings on Nov. 5 in Vernon and another on Nov. 19 via Vermont Interactive Television.

Levine said the longer the process takes, the longer Vermonters will have to wait to see the plant close.

The parallel litigation in federal court over the Vermont laws caused the board to start over and create a new record to avoid using “preempted” materials in the record.

Not all the intervenors in the docket were as concerned about the lengthy schedule.

“This is a very long process,” said Jared Margolis, an attorney representing the New England Coalition, a group that wants to see the plant close. “We’re starting from scratch.”

He said the longer schedule will allow the board to make an informed decision based on a valid record.

The parties will file their first round of written testimony June 29.

The continuing dispute has proved problematic for Entergy, the state and environmentalists alike.

For Entergy, ongoing litigation with Vermont, prompted the company to file an “impairment evaluation” addressing the uncertainty of the plant’s continued operation on the value of the company.

The company has been filing such reports since 2010 about the plant’s potential value in the future.

In an April 26 earnings conference call, Entergy CFO Leo Denault said the estimated value of the plant, as opposed to what the company’s books said, resulted in a $356 million pre-tax “impairment charge.”

The dip in stock value reported by the company was directly related to the plant’s uncertain continued operation.

“[T]he impairment derives from the unique legal and State regulatory processes surrounding Vermont Yankee, which make it uncertain that the plant will operate until the license expires in 2032,” Denault said. “Absent this uncertainty, the evaluation for impairment would not have been required.”

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Gov. Peter Shumlin and Michael Obuchowski, commissioner of the Department of Buildings and General Services, in Waterbury. Photo by Taylor Dobbs

Less than 48 hours after the lawmakers ended the legislative session, Gov. Peter Shumlin brought a thick stack of their work – the Capital Bill – to Waterbury and signed it where he hopes it will make an impact: at the state office complex.

This year’s capital bill is an update to legislation from last year, which went into effect before the devastation of Tropical Storm Irene. The new bill re-allocates $12 million for renovation projects to the Waterbury complex, $5 million for a new state hospital facility and dedicates the first $15 million of any budget surplus in the fiscal year 2012 to rebuilding efforts.

The Waterbury campus, which housed 1,500 workers with the Agency of Human Services, the Agency Natural Resources, the Department of Public Safety and Vermont State Hospital, was hit hard by Irene.

The funds will bolster incoming money from the Federal Emergency Management Agency as well as insurance claims still due to the state.

“I said when Irene hit that it was our opportunity to rebuild Vermont better than the way Irene found us,” Shumlin said, “and there is no better example than what is going to happen right here in Waterbury, or for that matter, downtown Barre, as we bring our state workforce to green, clean, energy efficient workspace that will allow them to be efficient for Vermonters into the 21st century.”

Part of the problem now facing the state is funding. Despite promises of money both from insurance and FEMA, the administration still doesn’t know how much they can count on for the project, which originally would have provided workspace for 1,024 workers at an estimated cost of $135 million. Shumlin called for the plans to be reconfigured to cut costs and to accommodate about 900 workers, but the project will likely be at least $100 million.

Jeb Spaulding, secretary of the Agency of Administration, said the state would probably have to invest at least $50 million in the project.

“We’re still looking at after insurance and after FEMA – it’s still a ballpark figure – but it could be $50 to $80 million over multiple years,” Spaulding said.

The historic buildings at the front of the complex will be remodeled and some of the buildings closer to the river will be demolished. Shumlin said it would include at least one all-new building. The offices should be set to reopen within three years, the governor said.

“We’ll be tearing down a number of the buildings that, frankly, we wish we didn’t have in the first place,” he said. “We’ll be rebuilding the historic infrastructure … so that we’ll have energy efficient built-in space, and we’ll be building a new state-of-the-art building right in back of these historic buildings that will provide quality workspace for the future.”

The office complex isn’t the only thing in Waterbury left in rough shape by the storm. While some downtown businesses closed in the immediate aftermath of the flood, Shumlin said he is worried about the slow bleed of business losses accumulating while the state offices are closed.

“There are businesspeople here, and I don’t want to single them out, who will tell you that their restaurants and other businesses are suffering because the state employees aren’t here to buy the services that they always bought in Waterbury,” Shumlin said. “So the challenge is, now that we’ve made the decision to come back: How do we move faster than the skeptics have said to ensure that we don’t lose more business in Waterbury between now and when we bring the state employees back?”

VTDigger

“We face two challenges this year: to rebuild this state better than Irene found us, and to continue to build our bright jobs future. To those who say we can’t do both at the same time, I say: we must.”

Gov. Peter Shumlin, Budget Address to the Legislature, Jan. 12, 2012

Five months ago, when Governor Shumlin addressed the General Assembly in his state of the state and budget addresses, he described a state that had overcome unprecedented hardship in the wake of Tropical Storm Irene but still faced major challenges: continuing to rebuild the state’s devastated infrastructure while focusing on creating a bright jobs future for Vermont. As the governor said in January, the legislature would make the tough decisions required this session to rebuild in Irene’s aftermath while also investing in economic opportunities for Vermonters.

With the legislative biennium drawing to a close, the governor and the legislature have delivered on that promise. The governor’s jobs agenda for the biennium – controlling health care costs and taking the burden of insurance off the backs of small businesses, invigorating our agricultural renaissance, extending broadband internet statewide by the end of 2013, claiming our energy independence, creating educational opportunities for our students, and rebuilding our state better than Irene found us – was delivered by legislative action. With few exceptions – most notably the legislature’s disappointing lack of action to streamline permitting and curb our prescription drug epidemic – the 2011-2012 legislative biennium was a remarkable success:

Agenda: “Today, I present a budget that makes the necessary choices to match our spending with Vermonters’ ability to pay. This is a balanced budget that protects our most vulnerable, strategically invests new dollars in making Vermont the education state, and builds on our strong jobs future. … I remain determined not to increase broad-based taxes on Vermonters as we begin to see signs of modest economic growth.”

Result: A responsible state spending plan that lives within available revenues and without raising any broadbased taxes. The budget we passed provides funding for a variety of Irene-related expenses, fully funds pension plans and the State’s share of education funding, builds reserves to help offset the most egregious federal funding cuts and economic downturns, protects the most vulnerable Vermonters, and supports innovative efforts to increase jobs.

Agenda: “We will not return to the State Hospital, whose decrepit condition did not dignify our most vulnerable Vermonters or high quality of care provided by our state employees.”

Result: Strengthened Vermont’s mental health system, shifting care from an obsolete institution-based system to a more individual-focused, community-based focus. Under the new law, acute in-patient care will be provided at the Brattleboro Retreat, the Rutland Regional Medical Center and Fletcher Allen Health Care in Burlington, as well as a new 16-25 bed secure facility to be located near the Central Vermont Medical Center in Berlin. In addition, services that enable individuals to remain in their communities will be increased, local emergency services expanded, and support for effective programs helping those with mental health conditions strengthened. The administration also brought the Agencies of Natural Resources and Transportation together in Montpelier to ensure cooperation on projects moving forward; and consolidated Education in downtown Barre and Human Services in downtown Waterbury, supporting those local economies.

Agenda: “Vermont’s transportation infrastructure pre-Irene was crumbling before our eyes. We will take the lessons from Irene to rebuild our roads, bridges, and rail stronger, faster, and more affordably.”

Result: A $658 million Transportation Budget – the largest in the state’s history – that will repair and replace damaged and aging roads, bridges and railroads to ensure businesses, tourists and the public enjoy safe and smooth travel.

Agenda: “With over 600 historic buildings in our downtowns flooded by Irene, many Vermonters who were put out of work are counting on us. I am proposing an additional $500,000 in downtown tax credits. Each dollar leverages 16 additional dollars in job creation, and every million dollars creates 110 new jobs.”

Result: A $500,000 tax credit program to help restore businesses located in historic downtowns damaged in Irene re-open and get Vermonters back to work. Also for businesses, imposed a moratorium on the ‘Cloud Tax’ on internet-based services to help Vermont companies that rely on that delivery system, and eliminated the tax on packaging equipment to reduce costs on Vermont’s manufacturing firms.

Agenda: “To the hundreds of Vermonters who lost so much – lost their house, lost their belongings, lost the land that their homes rested on or the land they tilled, we stand with you in the long recovery that lies ahead, to help you close the gap between your hopes and dreams that were washed away and the paltry $30,200 maximum reimbursement afforded you by our federal government.”

Result: Covered the entire cost of rebuilding for towns hardest-hit by Irene, provided half of the town match for transportation costs created by the storm, helped remove destroyed mobile homes and ensured those located in flood plains are able to move to a safer location through a buy-out program in partnership with municipalities, and created the VT Strong license plate to raise $1 million to help families impacted by Irene.

Agenda: “If we can turn the lights back on in just three days for over 70,000 utility customers, we can create jobs by harnessing the sun, wind, water, forests and fields to produce community-generated renewable power.”

Result: Approved legislation to expand clean, renewable energy sources across the state – creating quality jobs across the spectrum, including transportation, engineering, manufacturing, and more.

Agenda: “Building the best education system in the country will create jobs. However, we have to have the courage to do some things differently. We must start by elevating the Commissioner of Education to the Secretary of Education, appointed by the governor.”

Result: As of Jan. 1, 2013, the Department of Education becomes an official state agency, with the Secretary of Education appointed by the governor – a change sought by businesses across the state as they seek an educated, highly skilled workforce. This change will strengthen education and help prepare young Vermonters for the global economy. In addition, provided property tax relief by earmarking 50 percent of any surplus to the Education Fund. Increased funding to help high school students take college-credit courses, providing higher quality educational offerings, easing future college expenses for families, and encouraging young Vermonters to move on to higher education after high school graduation. In addition, provided $2 million to open Community College of Vermont and Vermont State College programs in Brattleboro, a town that has been devasted by recent flooding and a significant fire.
Agenda: “If we can rebuild our transportation infrastructure at 35 cents on the dollar, we can lead the nation in arresting the skyrocketing cost of health care that is hurting job growth and picking the pockets of our struggling middle class.”

Result: the Legislature approved an ‘exchange’ to offer comparable insurance plans at competitive prices to Vermont families and businesses with 50 or fewer employees. This was a critical step in Vermont’s steady progress toward becoming the first state to provide universal access to affordable, quality coverage.

Agenda: “If we can reconnect hundreds of miles of washed out dirt roads in just days so that milk trucks can get to our dairy farmers who had to dump milk during the storm, we can create jobs by fueling the renaissance in locally grown Vermont food.”

Result: An approximately $1.2 million Working Landscapes program to promote Vermont’s working farms and forests, tapping the state’s clean and green reputation to boost our growing value-added agricultural sector and bringing and keeping young Vermonters back into farming.

Agenda: “As a lifelong hunter, I know firsthand how important hunting and fishing is to Vermont’s quality of life and economic success. That is why my budget includes an increase to $1.5 million to Fish and Wildlife, an investment that leverages nearly $8 million in federal dollars to ensure a bright future for Vermont’s sportsmen and women.”

Result: A $1.5 million increase – more than double last year’s budget — to the Department of Fish and Wildlife to support Vermont’s wildlife-based recreation, which accounts for $385 million of economic opportunity for our state. This sector not only attracts new visitors to Vermont, but is critical to our hunting and fishing heritage, with Vermont ranking third in the nation in wildlife recreation.

“Having witnessed what Vermont can do together, I have never been more optimistic about our ability to keep getting tough things done to help us grow jobs in 2012.”

Gov. Peter Shumlin, State of State Address. Jan. 5, 2012

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ACLU-VT Praises Protection Of Vermonters’ Privacy Rights
MONTPELIER – The ACLU-VT praises the work of the Vermont Legislature to protect Vermonters’ privacy rights by defeating a proposal to give police warrantless access to the state’s prescription drug database. The ACLU opposed the proposal since it was first floated by the Shumlin administration last summer.

“The fight over H. 745 was about the protection of privacy in a digital age, particularly in relation to medical records,” said Allen Gilbert, ACLU-VT executive director. “But the questions raised about police access to the state’s drug database are also coming up in connection with cell phone tracking data, smart meter data, and GPS readings. They are important questions that touch on core constitutional principles.”

The ACLU-VT has argued consistently that private data held in “third-party” databases should not be accessed without a warrant, as required by the Fourth Amendment of the U.S. Constitution and Article 11 of the Vermont Constitution.

The ACLU-VT hopes that the access issue has been put to rest and next year the legislature can focus on improving the utility of the database as a health tool to assist Vermonters with prescription drug problems.

VTDigger

We are relieved that the search and rescue bill has passed the House and Senate and that Vermonters are assured a high level of search and rescue response from now on. We are grateful to the House Government Operations committee members and especially to Willem Jewett and Donna Sweaney for their hard work and tenacity in creating this bill and seeing it through to its conclusion. We also thank Cindy Hill for bringing search and rescue problems into the public eye through her reporting on VTDigger.org.

We will be following the work of the study committee and interested to see the legislation that results.

In following the progress of this bill we have seen Vermont politics at its best and worst. Starting late in the session many hours of meetings and testimony were spent researching and crafting this bill.

It was disturbing to see the unanimously passed House bill tossed out, replaced by a less comprehensive bill and used as a pawn in the Senate. In the end, and on the last day of the session, the right bill was passed and we are grateful to those who made it happen.

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