Gov. Jerry Brown is not listed as a defendant in a federal appeals hearing set for Feb. 9 in a Pasadena courtroom of the 9th Circuit Court of Appeals. But he might as well be.
For his conduct during an apparent “fix-was-in” rush to judgment by the California Public Utilities Commission could be a major issue in the case, which the PUC months ago reopened for more information gathering because of apparent collusion between the commission’s former president and the Southern California Edison Co.
At issue is a 2014 PUC decision forcing customers of Edison and the San Diego Gas & Electric Co. to pay more than 70 percent of the $4.7 billion cost of shutting down the double-domed San Onofre Nuclear Generating Station, where a $600 million replacement steam generator failed in 2012, essentially destroying the plant’s capabilities.
That ruling drew fury from many consumer groups because of evidence that officials of Edison, which owns the plant, knew in advance the Japanese-built generator could disable the huge power plant, on the beach just south of San Clemente, near the Orange-San Diego county line.
Evidence of the alleged collusion, under investigation by the state attorney general’s office for almost two years, includes a napkin from a Warsaw, Poland hotel on which ex-PUC chief Michael Peevey wrote down the essence of the 70 percent settlement during a meeting with Edison executives.
Emails have shown that Brown promised Edison cooperation soon after the San Onofre failure. But consumer advocates have sought for years more than 60 other emails between Brown and the PUC that the governor and the commission both have refused to release.
“In effect, that makes Brown a party to this case,” says Michael Aguirre, a former elected San Diego city attorney now representing a group called Citizens Oversight. “Brown could have gone to the PUC, where he had appointed most members, and said, ‘This is wrong.’ But he did not. This whole thing is about obstruction of justice because they never even had public hearings on it. The public never got a chance to say ‘We shouldn’t have to pay for this.’”
Aguirre tried to take the case to a federal judge, but was refused on grounds his group had not exhausted all its state remedies. He appealed after the state Supreme Court, also with a Brown-appointed majority, refused to order release of the sealed emails. That means, Aguirre contends, all state remedies have failed and a federal judge should hear the case.
If the appeals court takes the unusual step of intervening in a state regulatory dispute and remands the case for trial by a federal district judge, Aguirre will be able to subpoena the secret emails and presumably discover whether or not Brown had a direct role in the San Onofre settlement.
There’s also a chance the entire matter could become moot if the PUC issues its revamped decision in the case before the court hearing and lessens the demand on consumers. And it’s possible new state Attorney General Xavier Becerra will seek an indictment of Peevey, with the closeted emails becoming evidence in that case. Becerra, appointed by Brown to replace now-U.S. Sen. Kamala Harris, might see this as a chance to establish himself as a fighter for consumers and declare himself independent of Brown, who appointed him.
Aguirre says he wants to take his case to a trial court no matter what else happens. “They still haven’t held any hearings in this thing and it’s a multi-billion dollar matter,” he said. “There’s been no due process here and no one is holding the commission to account.”
For sure, if Aguirre gets his day in court, it would lead to much more transparency on the inner workings of one of the PUC’s most significant decisions of the last decade. That’s the very least of what millions of consumers deserve.
Thomas D. Elias writes the syndicated California Focus column.