On the difference between Act 160 & the merger question: 4/10/12

The following is a response to a Terry Hallenback blog in the Burlington Free Press, which can be found at http://blogs.burlingtonfreepress.com/politics/2012/04/10/vermonts-power-play-part-5/comment-page-1/#comment-29974


The analogy Ms. Hallenbeck makes to the Vermont Yankee vote in Act 160 is misleading, which is a charitable way to say: it’s simply wrong.

First, and most important, the argument articulated by Shap Smith concerning the merger is 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 intervene 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 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 both 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, 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 this was a wise decision to have made, but it is clearly distinct from the one in question today. (There’s a spurious view, accepted by Judge Murtha but clearly incorrect historically, that the legislature was surreptitiously trying to CLOSE VY and that all of the above was merely pretext. Neither the text of the law itself nor the historical political evidence provide any support this view, however frequently asserted it may be).

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.

Speaker Smith’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.

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