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Emails Raise Questions About Energy Negotiations

Emails that California utility regulators withheld for years — and recently released under a court order — show that political appointees of Gov. Jerry Brown met privately to discuss state energy policy.

Emails that California utility regulators withheld for years — and recently released under a court order — show that political appointees of Gov. Jerry Brown met privately to discuss state energy policy.

State officials say the meetings are routine and help them develop policies that benefit consumers. When leaders from multiple boards and commissions coordinate priorities and objectives, the public is better served, they said.

“It’s a basic function of government for agencies to work cooperatively with others,” Brown spokesman Gareth Lacy wrote in an email.

According to the newly released emails, officials from the California Public Utilities Commission joined colleagues from the Energy Commission, Air Resources Board, State Water Resources Control Board and Independent System Operator to debate issues of mutual concern, including cases before their respective panels.

Utilities commission spokeswoman Terrie Prosper said the Energy Principals meetings were held periodically so public officials could discuss cross-cutting issues that are important to the state.

“Discussions among the leaders of various agencies must occur in order to ensure that the state properly manages resources and considers the needs of Californians,” she said in a statement. “There was never a quorum of CPUC commissioners present.”

Prosper declined to say if the meetings are ongoing.

Critics were quick to condemn the meetings, which according to the emails were held through most of 2014.

“They are not appropriate because the public doesn’t get a chance to participate,” said Michael Aguirre, the San Diego attorney who sued the utilities commission for access to the emails that revealed the meetings.

“If they’re going to collapse four or five agencies into a group of energy principals, then they need to notice their meetings,” he said. “The public’s constitutional right to watch needs to be respected.”

The emails show that discussions involved matters looming before the regulatory bodies, including the San Onofre Nuclear Generating Station, or SONGS, the nuclear plant north of Oceanside whose failure has been under investigation by the utilities commission since 2012.

“SONGS meeting has to happen now,” energy commission Chairman Robert Weisenmiller wrote to fellow energy principals in February 2014, weeks before a proposed settlement of the San Onofre closure costs was announced publicly. “Will be polite to renewables but …”

Eight minutes later, a policy adviser to air board Chairwoman Mary Nichols replied, “Maybe we can push renewables meeting to 1:15, get them out by 2, and talk to SONGS for an hour or two afterwards?”

Nichols weighed that evening: “Meeting with renewables industry is a box we need to check.”

In another message a few days later, the air board chair was equally blunt.

“The basic fact is that nobody wants to meet with the renewable developers,” she wrote on Feb. 23, 2014. “No action will come from the meeting. So why are we having this meeting? We are doing this as a courtesy because the governor met with them when he visited and they sent a letter making specific requests that are the exact opposite of what the 5 large utility CEOs proposed when we met with them …

“Presumably we are doing it both to show respect for an important element of our energy strategy and to balance any perception that we, in meeting exclusively with utility CEOs, we are biased in our approach to the policy issues they raised.”

The energy principals group discussed fossil fuel power sources as well. For instance, an aide at the Air Resources Board wrote to the group in July 2014, in preparation for the August meeting.

“I’d like to begin working to find a time for the principals to meet with SoCal utilities to discuss role of natural gas in our mid- and long-term energy planning and policies,” wrote Ryan McCarthy, science and technology adviser for the air board. “I think we’d want to set aside at least two hours in Sacramento for that discussion.”

Neither the air resources board nor energy commission responded to requests for comment about the meetings and emails.

The utilities commission released the emails under orders from the 1st District Court of Appeal, which last month sided with the San Diego law firm Aguirre & Severson in a public-records dispute that dates to 2015.

Aguirre, a former federal prosecutor and San Diego city attorney, sued the commission after its lawyers refused to turn over more than 130 San Onofre-related emails exchanged between regulators and the Governor’s Office.

The commission argued the emails were exempt from disclosure as part of the deliberative process officials rely on to decide on cases and also as privileged communications to and from the Brown administration.

The appeals court disagreed. Judges ordered the commission to release all of the emails withheld under the deliberative-process exemption and at least some of the communications to and from the Governor’s Office.

The commission also was ordered to supply a list of every communication, attachment and recipient along with the date and time and responses — 759 pages all told.

Aguirre said despite the appellate court order, commission lawyers have not fully complied with his 2015 request for “any and all” San Onofre-related communications.

“The commission didn’t release any of the 2013 emails,” Aguirre said. “They just ignored them, and they didn’t turn them over to the court.”

Commission lawyers last year provided a Los Angeles Superior Court judge a 565-page list of emails regarding the San Onofre proceeding. The index of communications between March 2013 and June 2013 alone was 61 pages.

Aguirre is not the only consumer advocate concerned about the private meetings among energy principals.

“Since there isn’t any transparency with respect to these meetings, we cannot determine whether their discussions are inappropriately focused on specific proposals pending before the agencies,” Matthew Freedman of The Utility Reform Network, or TURN, said by email. “The agencies are obligated to make decisions that affect rates based on the record developed in ongoing proceedings, not based on private discussions between the governor’s appointees.”

Daniel Farber, faculty director at the University of California Berkeley Center for Law, Energy and the Environment, said he does not think the Energy Principals meetings violate state open-meeting laws because they involve members of different agencies — not quorums from specific commissions.

“California governance of the energy sector is horribly fragmented, so coordination between these bodies seems to be a good idea,” Farber said. “Whether this was the best format or not is something I don't think I know enough to assess.”

Hana Callaghan, director of government ethics at the Santa Clara University Markkula Center for Applied Ethics, said elected and appointed leaders have to think about more than state law when they make policy.

“Regardless of legality, public officials have ethical duties of accountability and transparency owed to the public that they serve,” she said by email.

Callaghan said the preamble to California’s main open-meetings law, known as the Ralph M. Brown Act, articulates the principle nicely.

“It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly … The people insist on remaining informed so that they may retain control over the instruments they have created,” it states.

The utilities commission became the subject of a criminal investigation into potential improper backchannel dealings in 2014. That’s when the state Attorney’s General’s Office executed the first of at least six search warrants, at locations such as the commission’s San Francisco headquarters, the headquarters of Southern California Edison in Rosemead and the home of former Commission President Michael Peevey in La Cañada Flintridge. No charges have been filed.