Wednesday, June 22, 2011


JUST FERCIN' WITH YA: Although our editorial Monday concentrated on the incredible arrogance and stupidity regarding the way Kaua`i Island Utilities Co-op (KIUC)- notably via CEO David Bissell and attorney David Proudfoot- has acted in the whole Federal Energy Regulatory Commission (FERC) hydroelectric project debacle, we did mention at least two glaring issues that have underlined efforts to reverse the board's decision to engage with Free Flow Partners (FFP) to go through the FERC process- issues that KIUC has refused to respond to, choosing instead to obfuscate the issues and overwhelm us with costly PR.

The first was the state's opposition to the project, specifically through statements by William Tam, deputy director for water at DLNR. The second was regarding the Supreme Court of the US (SCOTUS) case California vs FERC in which the court rules that FERC rules preempt state laws and regulations regarding water use.

But although KIUC has generally ignored the real issues and has attempted subterfuge and extortion in trying to win the ballot vote to reverse the decision, they are finally fighting back in the person of board members (and, full disclosure, our long time friend) Jan TenBruggencate, with whom we spoke on Monday.

Apparently TenBruggencate has also been speaking to the local newspaper and today they published an article in which TenBruggencate essentially claims that KIUC has only received "preliminary permits" and that the state only opposes actual final FERC permits.

They also said they couldn't reach Tam for the article but state that TenBruggencate met with Tam last week.

However in a piece by Joan Conrow in her Kaua`i Eclectic blog today she says that

I was able to get some clarification from Tam for my Honolulu Weekly article, which comes out today...

I asked Tam, who previously told me he’d taken no stand on the FERC permits, if that was a correct statement of his position and got this email in response:

"Hypothetical situations have been considered under certain assumptions, but no resolution has been reached."

And I can’t help but wonder, if the state supposedly doesn't oppose the use of preliminary permits to scope hydro projects, why have two state agencies — the Agribusiness Development Corp. and Department of Hawaiian Home Lands — already filed formal motions to intervene?

Clearly, they're alarmed about something.


But TenBruggencate's other contention- one made earlier to attorney-blogger Charley Foster- was that another SCOTUS case could mean that, as Foster headlined "FERC supremacy over Kauai water regs overstated?"

Seems a case called Jefferson County Et Al. V. Washington Department Of Ecology Et Al. (1994), which came after the 1990 California case, apparently held that some state regs could actually trump federal law as TenBruggencate claimed to us on Monday

Foster said in a comment on our Monday editorial:

It's an interesting situation before the Supreme Court. While California v. FERC said the Federal Power Act supersedes state law under all but certain enumerated circumstances, the Court later ruled in PUD No. 1 of Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700, that the Clean Water supersedes the Federal Power Act and gives the power back to the states to set licensing requirements. In pointing out the seemingly schizophrenic decisions, the dissent in the later case pointed out that California would have prevailed in the earlier case had it asserted its requirements through the Clean Water Act rather than through the Federal Power Act.

In any case, I wouldn't want to be the attorney having to navigate through that legal mine field.

But in reading the two opinions, while California is a wide ranging and broad reaffirmation of a previous case called First Iowa Hydro-Electric Cooperative v. FPC, which held for federal supremacy in all water issues, Jefferson County v. Washington Dept. of Ecology, deals narrowly and specifically with the Clean Water Act and water quality, although it does say one cannot separate water flow from water quality.

It doesn't even mention First Iowa or California and only touches obliquely on California at the end by saying

In addition, the Court is unwilling to read implied limitations into § 401 based on petitioners' claim that a conflict exists between the condition's imposition and the Federal Energy Regulatory Commission's authority to license hydroelectric projects under the Federal Power Act, since FERC has not yet acted on petitioners' license application and since § 401's certification requirement also applies to other statutes and regulatory schemes.

Which means that the case didn't even touch on any FERC supremacy issues because, at the time of the decision, there was no FERC involvement yet.

Which is exactly what opponents of the FERC process are saying- that if and only if FERC isn't involved in hydroelectric development, state laws and regulations would be enforceable- otherwise, all bets are off.

While it's nice that someone with some integrity from KIUC is finally, after all this BS, at least trying to address the specifics of why members are trying to reverse the board's decision, TenBruggencate is apparently shooting blanks- blanks most likely provided by Bissell and Proudfoot.

1 comment:

awolgov said...

Thanks for closer examination of Charley Fosterʻs incomplete analysis of California v FERC and the subsequent inconsequential case that purportedly overides it. We donʻt need re herrings at this stage of the game.