One of the key questions in the debate over Gaz Metro’s proposed acquisition of Central Vermont Public Service is this: Is it ever okay for the legislature to stick its nose into a regulatory process governed by the independent Public Service Board?
As we reported in this week’s Seven Days, Gov. Peter Shumlin’s answer last week appeared to be no, not ever. Outside an energy conference in Burlington last Monday, he said, “It’s absolutely inappropriate for the legislature or the governor to weigh in through law on a pending [Public Service Board] case.”
But later that week, Shumlin was asked at a press conference whether he did just that when, as Senate President Pro Tem, he orchestrated a 2010 vote denying Vermont Yankee a new operating license.
The gov’s answer?
No, he said. He was just following Act 160 — a law passed during his four-year hiatus from the Senate — which gave the legislature an up-or-down vote on Yankee’s relicensing. He further added that Act 160 — a law he utilized when trying to shut down Vermont Yankee — wasn’t such a hot idea in the first place.
At a press conference today, however, Shumlin shifted — ahem, elaborated on — his stance.
Asked about his effort last spring to charge Entergy, which owns Vermont Yankee, for any legal expenses the state incurred defending a lawsuit brought by the company, Shumlin today established a new standard of interference: If it has to do with Vermont Yankee, the legislature can do whatever the hell it pleases. If it has to do with utility acquisitions, leave well enough alone.
“The role of the legislature is different in Entergy than it has been in other regulated cases,” Shumlin said, because the legislature authorized the plant’s construction in the first place and then gave itself a role in the relicensing process.
Wait, what? Don’t worry, he explained:
This article appears in Apr 18-24, 2012.
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He sounds dumber than George Bush!!!!! He wants to have his pie his way. King Shumlin!!!
This man is a pathological liar.
He’s the Democrats’ very own Mitt Romney.
When it comes to crony-capitalism, Shumlin’s all in.
Mr. Heinz appears mystified by what seems to me to be a very clear distinction, made not just by the governor, but also by 2 former chairs of the Vermont Public Service Board (but gosh, what would they know?), the Speaker of the House and others.
These folks argue, as does the governor, that the legislature should not intervene when there is a PENDING
docket open at the Board. There was no open docket in 2006 when the legislature
decided to insert itself into the VY relicensing issue. No petition had been filed;
no parties admitted; no testimony taken.
More importantly, the legislative intervention in Act 160 did far more than
simply insert a legislative vote into an otherwise stable and established
process. In fact, the clear purpose of the law was to ESTABLISH a process, well before
it got underway.
To that end, the law called for specific studies to be conducted by the
Department of Public Service and presented to both the Board and the legislature
prior to any decision. Not only was the subject matter of the studies specified,
but so too was the public process which the Department was to follow in
conducting them. Similarly, the law specified, in detail, the public process the
Board was to follow, and required that the Board look at the evidence in the
broadest possible context.
In other words, the legislature did not attempt to replace the Board’s
evidentiary proceeding with its own process. Quite to the contrary, that’s
PRECISELY why a legislative vote was inserted in the first place. The
legislature recognized that its own process — inherently far more open and far
more subject to the whims of public opinion — is inherently different from the
Board’s far more technical, far more admissible-evidence-driven process, and
decided that, given the public policy importance of the VY issue, the legislature decided that BOTH were
needed before an affirmative decision could be reached.
In sum, the core purpose of Act 160 was to widen both the content and the
process involved in making the decision about VY specifically to enable far
greater public input, and to treat the decision as a wide public policy issue
rather than a purely technical proceeding based solely on evidence, existing
law, and precedent.
One can argue about whether or not Act 160 was a wise direction to have followed, but
it is clearly distinct from the one in question today.
By contrast to Act 160, if the legislature inserts itself into the
reimbursement question now, it would be mandating that the Board rule in a
particular way on a particular point, regardless of the evidence presented to it
by the parties, in an open docket with an ongoing proceeding. It would
effectively simply override both the law, the evidence, and the precedents
generally used by the Board IN THE MIDDLE OF A CASE.
Shumlin’s note of caution is therefore, I think, quite wise: it’s
highly questionable whether the legislature SHOULD intervene in ANY case with
this kind of specificity, especially on an issue as technical as the one causing
all the difficulty here: namely, the form which reimbursements of particular
Board mandates should take.
Legislators should think carefully about whether they want to have a Board to
sort out these complex issues, or whether they really want to substitute
political judgement for legal-technical judgement. It’s not unreasonable to
raise the question — it is, after all, a fundamental question of public policy
which is what legislatures exist to resolve — but it should be seen for what it
really is, and treated with far greater respect for its total policy context in
our legal and regulatory structure.
Otherwise, as Speaker Smith suggests, this looks very much like legislators
instructing a supposedly independent Board on how to decide a specific case, and
that seems like a highly dubious precedent to be setting.
Finally, it is worth noting that even in the 2010 Senate vote, the
legislature inserted itself in the Board’s process by restricting
the Board from a ruling, rather than by instructing the Board HOW to rule. The Board process simply remained
“on hold,” and now 2 years later, thanks to the Federal Court
decision, the docket has now been re-started. (The Board’s first
decision, with the assent of ALL parties to the case, was to begin a new
docket rather than re-opening the existing one, for a variety of legal
and evidentiary reasons).
Assuming the reporter has quoted him fairly, Shumlin may be contradicting himself by asserting both that ratepayers are better off with the merger and that he would prefer an independent CVPS, but there is no contradiction at all between his VY stance and his merger stance.
Great story!
Paul
Good blow by blow reportage. I was at that press conference but you obviously take better notes than I do! I was struck by the governor seeming to explain the Senate vote on VY with “the law made me do it”. In fact the Senate could have very, very easily just said two years “we vote affirmatively to let the Public Service Board handle this.” In fact that is what the Vermont Energy Partnership and other groups were publicly urging the Senate to do. This would have satisfied the requirement of the law (the Legislature must vote) and allowed the PSB to rule on the proposed Certificate of Public Good. In the terms Gov. Shumlin is using now, what could be simpler?
The governor also said one reason to support the merger is that it will reduce costs, which will reduce consumer power rates, which will create jobs. I believe the actual quote was “competitive power rates mean job creation in Vermont.” And HE’S RIGHT in principle – so why then is Montpelier so eager to pass renewable power legislation that will require utilities to pay literally 10 times the market rate of power (30 cents kwh for solar, compared to three cents on today’s open market)? Because if low rates are a jobs creator, then high rates must be a jobs killer, right?
But John…..
If the Gov really believes in PSB over legislative involvement, why couldn’t he have just said in the Senate “we vote to send it to the PSB?” That would have been an affirmative vote, right?
But instead it was “we can’t let the PSB decide on this, we’re voting no.” Do you know something I don’t, or can you admit that, yeah, they could have just handed it without comment to the PSB?
Can’t have it both ways, John.
Like the author of the article, Guy, you’re missing the
point: the question is not whether or not one “believes in” the PSB.
As I noted previously, the legislature that wrote Act 160
clearly believed that the issue of continuing operations at Vermont Yankee
merited two independent kinds of consideration. The first, by the legislature, was to be broad
both in scope and in terms of the voices to be heard; the second, by the Board,
was to be far narrower in both regards, even though the legislature DID demand
that the Board broaden its usual limitations in specific ways (more public
access, de novo consideration of certain issues rather than reliance on
testimony from earlier dockets).
Specifically, you ask what the governor could have done, and
yes, he certainly COULD have undermined the Act 160 process in the way you
suggest, effectively rendering the legislative vote meaningless. Rather than providing the kind of deliberation
that the Act 160 legislature specifically envisioned, the 2010 legislature
COULD have simply said, in effect, this is the Board’s decision to make, not
ours.
But if your question is whether the legislature SHOULD have
done this, my answer is quite clear: NO.
I think the Act 160 process was sensible. It left to politicians the kinds of issues
which they are best positioned to deliberate and resolve: namely, the place of
nuclear power in the broadest view of the energy policy of the State. Unlike the Board, which is bound by its own
precedent, the legislature is completely free to question its own premises and
earlier conclusions especially in the light of changing times and values, and
to do so with the widest possible public input. I believe this was precisely the right thing
to do as energy policy in our larger society has changed mightily since the
1960s, so, in my opinion, the legislative decision you’re asking for – namely,
NOT to grapple with these issues – would have been a major policy mistake.
As the merger issue unfolds, I am increasingly beginning to
think that it too would have benefited from precisely the same kind of scrutiny
BEFORE the PSB took up the detailed, technical case. While many of the arguments raised on both
sides strike me as unconvincing, I think there are basic questions which really
fall outside of the Board’s usual realm of decision-making, but which still
merit public debate. The largest of these is the fundamental question of
whether foreign ownership of our largest utilities is acceptable to Vermonters,
which many clearly find objectionable.
This and much more could – and perhaps should – have been
hashed out in the legislature BEFORE the merger moved to the Board. But that opportunity is now lost – unless the
legislature decides to simply HALT the current PSB process while it debates the
issue. As far as I know, however, no one
has suggested that.
In the meantime, I have spoken out against what I see as bad
policy and bad precedent: namely, an intervention by the legislature on one
specific piece of a complex issue with many moving parts, WHILE the case is
being heard and testimony being considered by the Board. THAT, in my estimation, would significantly
undermine the Board’s independence and its credibility.
Additionally, there is little evidence in the legislative
and public discussion so far that the debaters have grappled with the CVPS
payback question as one small part of a much larger whole, but that is crucial
here. So I oppose the proposed legislative
intervention for reasons both of process and of substance.
Finally, your questions were phrased in terms of what Peter
Shumlin could or should have done. Please
keep in mind that I speak for myself, not for him or anyone else.
One thing is perfectly obvious, that nothing in this merger is perfectly obvious! As John Greenberg here and plenty of others have suggested, it’s high time for a time out: instead of the futile debate over the insignificant $21 million, the legislature should mandate a 12 month moratorium on the PSB process.
During this time, the real political issues could be debated:1. Do we want foreign ownership of Vermont’s distribution AND transmission network?2. Is it proper and fair to allow a utility to finance a merger such as this from savings that result from job losses?3. Is it proper for the state’s public advocate to participate in a case where she stands to benefit financially from her own actions? 4. Whether CVPS repays in cash or efficiency investments, is it proper for a utility to make such a payment and then turn around recover by being granted higher rates?
Stop. Think. Act.
Whoa hold the phone…did you really say this :
“Legislators should think carefully about whether they want to have a Board to
sort out these complex issues, or whether they really want to substitute
political judgement for legal-technical judgement”
But um, John… did the Legislature (Senate) not substitute political judgement for legal-technical judgement when they voted and killed the PSB’s ability to exercise that legal-technical judgement? They denied the board the ability to sort out the complex issues. They said, no the PSB can not rule on this.
You can argue semantics all you want on this one, but the reality is on the one hand we have the Gov saying its ok and on the other saying it isn’t. All Shummy did on this one was hide behind the law. A funny thing is I didn’t see Shappy with his panties in a bunch about the law making him bring it to a vote.
Petey made this his campaign issue, he made a political decision to prevent the PSB from making a ruling.
Jcarter has it exactly right on this. Our bare-ass Governor is a blatant two-face when it comes to interfering with the PSB.
JCarter1: Obviously, I did indeed say what you quote me as
saying, and yes, the legislature DID “substitute political judgement for
legal-technical judgement when they voted and killed the PSB’s ability to
exercise that legal-technical judgement.” These things are NOT contradictory. The difference
which you and others seem intent on ignoring is where we are in the process.
In the VY case, the legislature wrote a well-thought through,
deliberative law when they enacted Act 160. They set up BOTH political and a
legal-technical processes, and by requiring the political vote BEFORE the
legal-technical process could conclude, they gave it precedence.
As I said in response to Guy, I would have had no problem
with the legislature doing precisely this again with the merger, but that’s NOT
what happened. I suspect there are a
number of issues which would arise if we were to accept “wendellsnoutsworthy”’s
suggestion of a “time out,” but I’m not
opposed to that idea a priori, since it does not tamper with the ongoing Board
process, though it might effectively preempt it.
I don’t speak for Shap Smith any more than I speak for the
governor, but his stated problem is the same as mine: namely, it’s a terrible
precedent to have the legislature DICTATE to the Board on technical matters during
an ongoing open docket.
I would presume the speaker didn’t “get his panties in a
bunch” about Act 160 for the reason I articulated: there’s nothing wrong with
deliberately setting up, in advance, a two-pronged process. In fact, there is precedent for this kind of
dual track process elsewhere in Vermont
law. Vermont’s low-level radioactive
waste disposal law establishes a detailed technical decision making process for
siting waste in Vermont, but then requires legislative approval before a
disposal facility could actually be built. (It also established a process for negotiating
an out-of-state compact, which is the solution that was ultimately chosen). I would be unsurprised to learn that there
are other examples as well.
Finally, your last statement is only partly correct. It’s true that Shumlin “made this his campaign
issue,” but it’s not true to say that he “made a political decision to prevent
the PSB from making a ruling. “ He
followed a law that had been written 4 years earlier which did just that. Shumlin’s political decision was confined to
timing the vote when he did. All sides
in the debate ASSUMED that the provisions of Act 160 would be followed. Entergy
and Governor Douglas had been asking for a vote until right before Shumlin
actually scheduled it, but of course, their motives were pure as the driven
snow and had nothing whatever to do with anything political, but his were
nefarious.
Greenberg can attempt to draw fine (actually, invisible) distinctions all he wants. It’s bogus. He favors the Legislature butting into the PSB’s jurisdiction IF the goal is to close down VY. The Governor is a liar. Period. And Greenberg is the Liar’s Chief Defender.
Very thoughtful.