Michele Kearney's Nuclear Wire

Major Energy and Environmental News and Commentary affecting the Nuclear Industry.

Friday, September 30, 2016

Demanding Secrecy, Former PG&E Lawyer Who Left California Public Utility Commission In A Scandal Now Threatens Environmental Progress

Dear Michele,
I'm writing today to again cast light on the corrupt practices of the CPUC, PG&E, and other parties seeking to raise rates and eliminate 21% of California's clean power.  If you appreciate our work, please consider making a contribution. See below.
Warm wishes,
Michael
Demanding Secrecy, Former PG&E Lawyer Who Left California Public Utility Commission In A Scandal Now Threatens Environmental Progress
September 30, 2016
John Lindh, the former PG&E attorney forced out of Senior Counsel job at California Public Utilities Commission in a scandal, is now threatening Environmental Progress for an anti-nuclear group.
John Lindh, the former PG&E attorney forced out of Senior Counsel job at California Public Utilities Commission in a scandal, is now threatening Environmental Progress for an anti-nuclear group.

by Michael Shellenberger
A former Pacific Gas & Electric (PG&E) attorney now working for Friends of the Earth (FOE) has threatened action by California Public Utilities Commission against Environmental Progress for our efforts to expose backroom deal-making at the scandal racked agency.
"These are serious violations that if left uncorrected will taint the decisional process," John Lindh claimed in a letter to Environmental Progress attorney Frank Jablonski and me (full letter reproduced below).
I hadn't heard of Lindh until he emailed us. Thirty seconds into reading about him on-line, I couldn't quite believe what I was reading:
"Lindh was a PG&E gas attorney for more than a decade until being hired by the Commission in 2008. His time with the utility coincided with the period during which many of PG&E's alleged gas-system violations occurred," wrote the San Francisco Chronicle.
As background, the ultra-powerful California's Public Utilities Commission is flamboyantly corrupt, secretive, under criminal investigation and headed by individuals who take their orders directly from Governor Jerry Brown.
While at the Commission, Lindh, who oversaw 70 attorneys, worked with Commission's "Safety Officer" Jack Hagan to threaten Commission attorneys who refused to go along with their desire to reduce the fine on PG&E for its San Bruno pipeline explosion that killed eight people: 
Lindh reassigned the attorneys after a May 31 confrontation with Hagan in which the safety division chief told them to help him build a case against fining PG&E "or else," according to confidential e-mails from the lawyers that The Chronicle obtained.
Some of the attorneys told Lindh in those e-mails that they felt threatened by Hagan, who has acknowledged that he used to carry a concealed gun in the office.
But wait — it gets worse!
After reassigning the attorneys this month, Lindh publicly asserted that the legal team had wanted off the case. The team's lead attorney, Harvey Morris, angrily disputed that in an e-mail to Lindh that was later leaked, demanding that he stop making "defamatory representations that I and the other attorneys in the San Bruno (matter) voluntarily left the case."
What did Morris say? More SF Chronicle:
In his e-mail, Morris said his team did not spend more than two years on the case [against PG&E for the pipeline explosion], drafting hundreds of pages of briefs, so it could walk away from the case at the last minute.
"How could you or anyone else even question our commitment to ensure that such a tragedy should never happen again?" Morris said. "Your statements about us omit any mention of the fact that we refused to sign a reply brief, that we felt was unethical.
"Because you did nothing to resolve our ethical concerns, one attorney asked to be taken off the case, and you then claimed that all of us asked to be reassigned."
... Morris is the second member of the legal team to lash out at commission executives. Last week, attorney Robert Cagen wrote in an e-mail released publicly that Hagan's no-fine proposal was "unlawful."
In other words, it was only after Morris made the issue public that Lindh had to resign. which means that until then Lindh was protected by current President Michael Picker and all of the other Commissioners.
This episode gives a clear view into the deep corruption and rot that pervades every aspect of the Commission's dealings with PG&E.
Now consider that Lindh was the person that FOE's Damon Moglen — who admitted to me on-air that he believes there is a vast global conspiracy by the World Health Organization and the International Atomic Energy Agency to cover-up the true death toll at Chernobyl — decided to hire.
Now, into that context, comes Lindh sending a menacing email to Environmental Progress's attorney, Frank Jablonski, and myself.
First, in copying decisional staff in a Commissioner's office at the CPUC, you have engaged in an improper ex parte communication about substantive issues in the case.
Consider the role Lindh is attempting to play. He is behaving as though he is still Chief Legal council to the Commission, even though FOE has no more legal rights in this process than Environmental Progress. 
Further, Lindh is acting as the enforcer of PG&E's effort to rush its rate hike through the Commission — leaving PG&E to coordinate all of the various anti-nuclear groups who have become intervenors in the process so they can legitimate and normalize what is fundamentally illegitimate and abnormal Commission, process and proceeding.
Lindh is referring to a letter (reprinted in full, with PG&E's letters, below) that I sent in response to PG&E's effort to rush through the Commission its request for a rate hike in exchange for Diablo Canyon before the Commission can be reformed by the California State Legislature.
The Letter:
As you know, the last time a California utility (along with TURN, FOE and ORA) rushed a secretly negotiated rate hike/plant closure deal through the CPUC, the result was an on-going federal and state investigation of suspected criminal activities.
...Given these rising demands for transparency, it is rather audacious for PG&E to now propose holding a private meeting — in PG&E's corporate offices, no less — to negotiate a settlement schedule two days before the first CPUC meeting.
As such, the meeting you are proposing only reinforces the perception that this CPUC proceeding is merely for show. 
If, after we achieve reform, you still want to raise electricity rates in exchange for eliminating 21 percent of California’s clean power, then CPUC settlement hearings can proceed with legitimacy, free from the dark cloud that stains all CPUC proceedings, especially ones of this magnitude.
The eight years between now and 2024/25 is more than enough time to achieve needed CPUC reforms, a resolution to the criminal investigations, and hearings on your rate hike proposal...
I agree with the State Auditor that sunlight is the best disinfectant and am thus cc’ing the reporters and editorial writers who have done yeoman’s work over the years to shine a light on the CPUC, and press the case for reform.
I am also cc’ing Governor Brown and President Picker. It’s not too late for them to do the right thing.
Lindh's claim that we violated ex parte by cc'ing Picker is howlingly ridiculous.
As background, this thing called  "ex parte communications" applies to private communications that are hidden from other "intervenors" in Commission business.
What EP did was the exact opposite: we literally cc'd all other intervenors in the proceedings.
By contrast, at the very same moment that Lindh was threatening Environmental Progress, PG&E announced to all of us that it had just enjoyed a lovely ex parte conversation with Commission President Picker — and that PG&E demanded that its conversation stay confidential. What a game!
Lindh proceeds to cement his role as PG&E's heavy:
Second, in copying non-parties, in particular several media outlets, on a discussion about a meet-and-confer process on procedural scheduling issues, you have violated the rulers [sic] protecting such discussions from disclosure to non-parties.
First, that's quite a Freudian slip.
Second, has Lindh really learned nothing?
Forced to leave the Commission after one of the individuals he was threatening spoke out publicly against it, Lindh is once again back to threatening individuals and demanding secrecy.
Why is secrecy so important? Because the Commission is corrupt to the core, because the anti-nuclear views of its "rulers" are unscientific and plain nutty, and the deal to close down California's single largest source of power couldn't be dirtier.
Which is why it will fail when exposed to repeated doses of sunlight.

The Emails, In Chronological Order

From: "Middlekauff, Charles (Law)" 
Subject: A.16-08-006: All Party Meeting in Advance of Pre-Hearing Conference
Date: September 23, 2016 
To: [Parties to the Proceedings]
Parties to Application 16-08-006:
Administrative Law Judge Allen has scheduled a pre-hearing conference for this proceeding on October 6, 2016 at 10:30 a.m.  As the regulatory process gets under way, PG&E is looking forward to working collaboratively with all of the parties to make this proceeding as efficient as possible.  To that end, we wanted to invite all of the parties to a meeting on October 4, 2016 from 1:30 p.m. to 3:30 p.m. with the goal of trying to build as much consensus as possible on the procedural and scoping issues to be addressed at the pre-hearing conference.
We would like to try to reach agreement on a proposed schedule for the proceeding.  In addition, we think it would be useful to compile a list of issues that we agree are in scope, those that we agree are out of scope, and contested scoping issues that the Commission will need to address in the Scoping Memo. Our goal would be to provide an agreed upon schedule and the list of scoping issues to Judge Allen either in advance of the pre-hearing conference or at the pre-hearing conference.  All of the parties may not be able to agree on everything, but it would definitely help to talk in advance of the pre-hearing workshop and to find as much common ground as possible.
We will be sending out separately to the service list a meeting invite that includes information to attend in-person, as well as call-in information for those who want to attend telephonically.  If you plan to attend the meeting in person, please send an e-mail to Charles Middlekauff (crmd@pge.com) and Stephanie Louie (syw1@pge.com) to let us know.  This helps to expedite getting through building security to have everyone’s name in advance.
We look forward to your participation and to working together to make this proceeding run as smoothly as possible.
Bill Manheim and Charles Middlekauff

From: Michael Shellenberger
To: [Parties to the Proceedings]
Dear Mr. Manheim and Mr. Middlekauff,
Thank you for your invitation to discuss PG&E’s attempt to expedite your proposal to raise electricity rates in exchange for closing Diablo Canyon. If you truly intend to go forward with the meeting, I will attend with my colleagues.
However, your invitation gives the distinct impression that you are seeking to rush your rate hike/plant closure deal through the CPUC before it can be reformed by the California State Legislature.
As you know, the last time a California utility (along with TURN, FOE and ORA) rushed a secretly negotiated rate hike/plant closure deal through the CPUC, the result was an on-going federal and state investigation of suspected criminal activities.
CPUC President Michael Picker still refuses to release the emails between himself, Governor Jerry Brown and former CPUC President Michael Peevey relating to the San Onofre settlement — even though those emails may contain evidence of criminal activity.
Last August, the climate scientist James Hansen, Whole Earth Catalogue founder Stewart Brand, and over four dozen prominent scientists and environmentalists affiliated with my organization, Environmental Progress, published in an open letter to Governor Brown urging him to direct the legislature, not the CPUC, to decide on this issue.
"Sending this proposal to the CPUC, an institution that is struggling with its own crisis of credibility relating to improper relationships with regulated industries,” they wrote, “would raise further doubts about the legitimacy of the proceedings."
And just last week, the California State Auditor demanded significant reforms by CPUC — reforms that the CPUC immediately and brazenly rejected.
“If [Picker] doesn’t fully comply with [state auditor] recommendations, he should resign,” wrote the San Jose Mercury News yesterday. “If he doesn’t, the Legislature needs to step in, as we’ve suggested before.”
The CPUC’s days as a secretive and rogue agency are numbered. Last year, the legislature passed strong CPUC reforms — including having to make public its emails — that Governor Brown vetoed.
This year, after reform legislators proposed eliminating the CPUC altogether, Gov. Brown negotiated a compromise. But then, at the last minute, Mr. Picker killed the deal in the final hours of the last legislative session, according to reports by the San Diego Union Tribune and the Los Angeles Times.
State legislators were angered by the double-cross, and have announced they will push for even tougher reforms, either in the legislature or on the ballot.
Given these rising demands for transparency, it is rather audacious for PG&E to now propose holding a private meeting — in PG&E's corporate offices, no less — to negotiate a settlement schedule two days before the first CPUC meeting.
It is equally audacious to claim the desire to “build as much consensus as possible” when your own Joint Proposal not only forbids you from modifying it but also requires you to “actively and mutually defend the Joint Proposal and associated settlement agreement and the Joint Application if opposed by any other party.”
As such, the meeting you are proposing only reinforces the perception that this CPUC proceeding is merely for show.
I hope you, your CEO and PG&E’s board of directors will consider that there is a better way. PG&E should withdraw its proposal and work with the growing movement for real CPUC reform.
If, after we achieve reform, you still want to raise electricity rates in exchange for eliminating 21 percent of California’s clean power, then CPUC settlement hearings can proceed with legitimacy, free from the dark cloud that stains all CPUC proceedings, especially ones of this magnitude.
The eight years between now and 2024/25 is more than enough time to achieve needed CPUC reforms, a resolution to the criminal investigations, and hearings on your rate hike proposal.
Reform is inevitable. I hope PG&E sees its enlightened self-interest in achieving it. Doing so will help re-build the public trust's in PG&E that it desperately needs and, I believe, genuinely desires.
I agree with the State Auditor that sunlight is the best disinfectant and am thus cc’ing the reporters and editorial writers who have done yeoman’s work over the years to shine a light on the CPUC, and press the case for reform.
I am also cc’ing Governor Brown and President Picker. It’s not too late for them to do the right thing.
Sincerely,
Michael
————
Michael Shellenberger :: President, Environmental Progress :: EnvironmentalProgress.org

From: Frank Lindh
To: Michael Shellenberger, Frank Jablonski
Michael -
I don't believe we've met before, but I feel compelled to point out that your message below violates several of the CPUC's Rules of Practice and Procedure, as well as the rules of fair play.
I am copying Frank Jablonski, your attorney of record, to include him in the conversation.
First, in copying decisional staff in a Commissioner's office at the CPUC, you have engaged in an improper ex parte communication about substantive issues in the case.
Second, in copying non-parties, in particular several media outlets, on a discussion about a meet-and-confer process on procedural scheduling issues, you have violated the rulers protecting such discussions from disclosure to non-parties.
These are serious violations that if left uncorrected will taint the decisional process.
Please let me say you don't do the cause of CPUC "reform" any good when you violate such basic and important rules that exist in order to ensure the integrity of the process.  
I hope you and Frank can find a way to correct these missteps, and at least do better going forward.
I look forward to meeting you in person next week in San Francisco.
Thank you.
Frank Lindh
Attorney for Friends of the Earth

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