Business & Economy

Shumlin: “I don’t believe it’s healthy to second guess the Attorney General”

Court drawing from the first round of hearings. Deb Lazar/The Commons
Court drawing from the first round of hearings. Deb Lazar/The Commons

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.

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  • lex luther

    The Gram article did not say VT spent 8 million on this case. Rather, the story reported that Sorrell expected Entergy had spent over 8 million on the case. Significant difference.

    “Sorrell said he expected Entergy had spent more on legal fees than the entire annual budget of his office — about $8 million.”

  • Fred Woogmaster

    The Governor is correct; second guessing is worthless.
    The Attorney General’s track record in important cases is lousy. His reviews of cases of allegations of excessive force or inappropriate behavior by police have been highly questionable (especially the recent case in Hartland). He has held the office long enough and has amply demonstrated how he operates. Vermont needs something different.

  • Randy Koch

    I don’t know about the other cases Sorrell has lost, but in the Entergy case it seems absurd to slam the state’s lawyers as Cheryl Hanna and others have done. They were after all fighting with both hands tied behind their backs in that none of the terrifying safety issues could be raised. Sort of like not being able to mention death in a murder trial. It would tend to make the industry lawyers look pretty good.

  • Fred Woogmaster

    In the case I referred to, the man was from Wilder i believe – not Hartland.

  • Gov. Shumlin said: “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.”
    Vermont Yankee’s NRC original license is for 40 years.
    Vermont Yankee’s DESIGN LIFE is something entirely different and has nothing to do with the license period.
    The engineered “design life” is much longer than 40 years. With proper O&M, it may be 60 years, 70 years or longer.
    The cost of any unscheduled shutdown of a 620 MW plant quickly adds up to a million dollars or more.
    Over the years, owners of power plants are repairing, replacing and upgrading almost every part of their plants to make sure they are able to run continuously near rated output for long periods of time.
    Vermont Yankee (capacity factor 0.92, one of the highest in the world) runs for about 500 days near rated output, shuts down for about a month to refuel and make repairs and replacements (during the most recent shutdown there were more than 1,000 outside contractors on the site) and then operates for another 500 days. A plant has to be highly reliable to do so.
    Vermont Yankee’s production: 620 MW x 8,760 hr/yr x 0.92 = 4,992 GWh/yr, which it sells for about 5.5 c/kWh. Renewable energy cost about 3 to 5 times as much per kWh.
    Vermont consumes a total of about 5,800 GWh/yr.

  • Josh Fitzhugh

    The Governor may say “he has not decided whether to appeal” but the decision lies with the Attorney General. 3 VSA 157, 159.

  • Gov. Shumlin was for Vermont Yankee until he was against it.

    Nostaglia Time: Shumlin in Favor of Vermont Yankee in 1998
    Shumlin and Vermont Yankee: The Old Days

    In 1998, Peter Shumlin was President Pro Tem of the Vermont Senate, and Vermont Yankee was owned by a consortium of utilities. In 1998, Shumlin sent a letter in support of Vermont Yankee to Mike Empey, a Vermont Yankee supporter. Mike Empey just sent the letter to me and gave me permission to post it. Shumlin writes that he fought an effort to prematurely close Vermont Yankee, “I can assure you that as long as I am one of the people in charge of he leadership of the Vermont Senate, no such provision will become law under our watch. Vermont Yankee contributes tremendously to the economy in Windham County, not to mention our power needs.” Yes. Shumlin wrote this and signed it.

    Mr. Empey works at Vermont Yankee, but he is not any type of official spokesperson. This posting of a 14-year old letter is not an official Entergy statement. Seems to me that official Entergy statements are never this amusing….

    The letter, signed by the governor, can be enlarged and viewed on the Yes Vermont Yankee website.

  • Ken Dean

    In October 2010 Peter Shumlin and Brian Dubie were invited to a group in Bradford, Vermont to discuss their energy policy positions on renewables, Vermont Yankee, Hydro Quebec and how to build a safe and sound energy future for Vermont, create low electrical rates, create good jobs, make it comprehensive.

    Peter Shumlin, spoke at length to this group, of the time when he was supportive of Vermont Yankee, the largest job producer in his county of Windham, solid supporter of the community, the schools, the region.

    Then he spoke of the the lies, the leaks, the cover ups, the breakdown of trust, the peril Vermont would face if the aging plant continued to operate this way. He walked the Bradford group through areas where he found Entergy irresponsible, unaccountable and reckless as years and years played out. Health issues, environmental issues, reliability issues, all realms where the NRC says States have jurisdiction, were talked about.

    The audio tape of these verbatim comments at the Bradford, Vermont forum were posted and available on in October 2010. Peter Shumlin was a candidate for Governor then, and very candid about his relationship with Vermont Yankee from Alpha to Omega. Worth listening too.

    Tells the whole story pretty well. Perhaps can keep and make this excellent audio tape available in their 2010 archives. And lastly, other State Senators, some very conservative Republicans among them, had a similar several year experience with Entergy, and voted their heartfelt conscience in Feb 2010, that it would be best to shut Vermont Yankee down after March 2012. The State Senate bi-partisan majority vote to do that was 26 to 4, [Feb 2010.] And there is a reason for such a clear bi-partisan vote of conscience.

    The above mentioned tape tells the story.

    For the record.

  • Ken,
    A group of utilities owned Vermont Yankee until 2002. They likely did not have the staff or experience to manage a 600 MW plant and a nuclear plant at that.
    The plant likely was in less than satisfactory condition in 2002, because Entergy bought it for a song and a dance.
    Entergy, which already owned 5 other nuclear plants, made significant improvements worth at least $200 million over the years. As a result, it was able to increase the plant’s reliability, as reflected in its capacity factor of 0.92, one of the highest in the US and the world.
    A plant has to be highly reliable to do that, i.e., operate for 500 days near rated output, refuel and perform major maintenance for 4 weeks, and again operate near rated output for 500 days; steady, low-cost, near-CO2-free energy, 24/7/365.
    Utilities typically play nice to the state to get rate increases. Now that the state’s leaders have aligned their interests/electability with the state’s subsidized- renewables oligarchy, the utilities are playing nice accommodating renewables energy and the state awards them big rate increases to pass the costs onto rate payers; variable, intermittent, high-cost, somewhat-CO2-free energy, not 24/7/365.
    GMP’s Lowell facility is a good example of working closely with the state to get a heavily-subsidized, environmentally-damaging project built that produces variable, intermittent, energy at 9-10 c/kWh (unsubsidized at about 15 c/kWh, grid energy at about 5.5 c/kWh).
    The benefits will be passed to GAZ-METRO in Canada, the costs, environmental damage, and infrasound and low-frequency noise, LFN, will be passed onto Vermont’s already stressed households and businesses.
    Such misguided policies are making Vermont’s low/no-growth economy, with an excessive proportion of low-paying jobs, even less efficient at exactly the time it needs to become more efficient, while making not one iota of difference regarding global warming and climate change.
    Vermont already has the lowest CO2 emissions/$ of state gross product. Its CO2 emissions are primarily from vehicles and buildings. It is in these 2 areas Vermont should concentrate its efforts. Instead, it listens to the siren song of following the money, i.e., get as much subsidies to finance tax-sheltered projects as possible.

  • don eggleston

    When Shumlin was a strong supporter of VY, and said he would fight any effort to close it, he knew that the plant was licensed for 40 years. There’s no difference in the plant itself between the time when he was a strong supporter of it, and now, when he’s a violent opponent of it. In fact, the plant’s maintenance and reliability have improved since Entergy bought it in 2002.

    The ONLY thing that has changed since Shumlin made his pro-VY remarks in 1998 and today is politics. In planning his run for Governor, Shumlin understood that the left-wing of the Democratic Party was against VY, so he changed his position 180 degrees. Pure and simple. His own independent reliability committee, staffed with his pal Arnie Gunderson, released a report in 2009 saying that the plant was reliable. Shumlin chose to completely ignore that report because it didn’t come out the way he wanted.

    Lastly, I’d ask the question: Since talking about safety is a no-no, Shumlin and Sorrell now say the issue is all about reliability. Leaving aside the fact that both the NRC and Shumlin’s own independent commission have concluded that the plant is reliable, how is the issue of reliability relevant to Vermont anyway, since Vermont has no contracts to buy power from VY after March, 2012? The reliability issue is a red herring.

  • Don,
    Many months ago, I predicted Vermont Yankee would not be closed down by the state and that VY would not need a certificate of public good if it sold its low-cost, near-CO2-free energy directly to the grid and to out-of-state utilities.
    Judge Murtha made it abundantly clear several Vermont laws regarding VY are unconstitutional and ruled against their provisions.
    Judge Murtha saved a $90 million dollar payroll, and 650 high-paying, high-benefit jobs at VY and about 1,500 jobs within a 25-mile radius of VY.
    Some state government leaders are still planning to waste scarce funds for finding suitable grounds for appeals; the fee meters of $500-$1,000/hr lawyers are ticking.
    Reliability is indeed a red herring, as Vermont Yankee has one of the highest capacity factors in the US.
    The plant runs near rated output for 500 days, refuels and does major maintenance for 4 weeks with over 1,000 outside contractor personnel on the site, and then runs again near rated output for 500 days. It HAS to be reliable to able to do that.
    BTW: The US nuclear industry has the highest capacity factor of all nations.

  • Rob Simoneau

    “Reliability is indeed a red herring, as Vermont Yankee has one of the highest capacity factors in the US.
    The plant runs near rated output for 500 days, refuels and does major maintenance for 4 weeks with over 1,000 outside contractor personnel on the site, and then runs again near rated output for 500 days. It HAS to be reliable to able to do that.
    BTW: The US nuclear industry has the highest capacity factor of all nations.”

    From an operational point of view you are implying that capacity factor somehow translates into safety. Let us take Southwest airlines as a case in point which is known for its capacity factor, short turn around cycle times. Some of their fleet of jets was grounded since there were stress cracks and a near crash due to the fuselage blowing open during flight. These jets were not design for so many take offs and landing in such a short time window. “The 15-year-old Southwest Airlines jet, which tore open along its lap joint last Friday, had 39,000 takeoff and landing cycles.” This was well above the 30,000 recommended threshold.

    The capacity factor does not mean that the operation is safe and indeed it often means catastrophic failure if allowed to continue since safety and/or preventative maintenance is not done. From an operational point of view capacity factor means that the nuclear power plants operate with known defects and critical flaws until it is convenient to fix them, usually during refueling, which leaves the public in danger so the nuclear plant operator can safe a few buck. Vermont Yankee is neither reliable or safe.

    BTW: It means that the United States nuclear industry is also the most dangerous from an operational safety point of view.

  • Bob,
    The damage done to the US environment, the number of people killed and maimed, and damage to people’s health by the automobile industry during the past 40 years proves it is the most dangerous industry? Unsafe at any speed?
    A nuclear plant is safe, if operated by properly trained personnel and if proper O&M is performed and supervised by the resident NRC person, who is a nuclear engineer backed up by a staff of experts in the federal government.
    No state, including Vermont, has the expertise to judge what is safe and what is not. For that reason the NRC applies uniform standards to ALL US nuclear plants no matter what state they are in; a rational approach.