IT'S BEN DOVER TIME: Our "extra" post yesterday- a news item on Ben Sullivan's hiring by the county to be the new Energy Coordinator- was confirmed in a county press release today.
But apparently others weren't as caught off guard as we were. We heard from quite a few readers saying that they were Casablanca-style "shocked-shocked" that Sullivan parlayed his short stints as founder and head of Apollo Kaua`i and election to the Kaua`i Island Utilities Coop (KIUC) Board of Directors into a well-paid job in the administration of Mayor Bernard Carvalho, Jr.
But looking back on Sullivan's rise from FOB malahini to appointment to Carvalho's crony-filled staff shouldn't come as a surprise to anyone who watches the administration's hiring practices and has interacted with Sullivan since his election to the KIUC board.
We began getting them soon after Sullivan's election- emails, comments and phone calls increasingly expressing disillusionment and dissatisfaction with Sullivan's apparent unwavering shift from perceived dissident to KIUC defender of the realm.
It came to a head with his support for the whole FERC-FFP deal followed by the propaganda- some say misinformation- driven vote that allowed the co-op to go ahead with federal involvement in hydropower projects rather than rejecting FERC in favor of strictly state oversight... especially given the potential for federal "trumping" of the more environmentally-protective local regulations and approval process.
But that alone wouldn't be enough to be a "good fit" for the yes-men and women that kow-tow to Carvalho, in an administration where "never is heard a discouraging word" from appointees... or at least not if they expect to serve in their "at-the-pleasure-of" positions for long.
Sullivan didn't just support board decisions as is required under KIUC rules- he firecely defended them. Board Rule 27 mandates lock-step public adherence to board-determined positions and policies and requires all public statements by board members to be cleared by either the chair or (get this) the CEO. The latter creates a potentially unethical if not illegal situation whereby employees of the not-for-profit are directing members of the board.
He has seemingly relished engaging members of the public in support of those positions and dove in head-first in a rare-for-Kaua`i trait of personal engagement with dissidents... of which there are many when it comes to the electricity coop.
And that is what has made Sullivan a perfect fit for the Carvalho administration. It seems to matter not that he is an architect by education and, although his non-profit work has dealt with electrical power issues, one would think that a highly paid, highly skilled position like this would be filled by someone with training and/or experience in the field... although that hasn't stopped most of Carvalho's appointees from landing jobs with a notable lack of credentials.
Sullivan has proved his worth to Carvalho simply through his ability to stick to the guns of his higher-ups, as evidenced by his stick-to-it-ive-ness in taking on all comers in defending the KIUC realm.
It matters not that he is a relative newcomer to the island or that he is a not "local"- usually a negative for patronage hires under Carvalho. It matters only that he is ready, willing and able to act as a human shield for arrows directed at his boss.
We like Ben. He's the nicest of guys and actually we're sure he actually believes in what he says and what he does. It's likely he will bristle at this analysis of why he got his "dream job."
But given the history of the hiring practices since Carvalho took office just over three years ago, it's hard to come to any other conclusion.
Showing posts with label FERC. Show all posts
Showing posts with label FERC. Show all posts
Thursday, December 8, 2011
Saturday, October 29, 2011
(Saturday Special) THE LUNATIC IS IN MY HEAD
THE LUNATIC IS IN MY HEAD: Ever since Thursday we've had a nagging feeling we were missing something after reading the article in the local newspaper about Tuesday's Kaua‘i Island Utility Cooperative (KIUC) board meeting where it was announced that they were going to essentially ignore the Federal Energy Regulatory Commission's (FERC) ruling dismissing of two of KIUC's eight preliminary hydropower permits and throwing the rest into question.
So on Thursday, when we couldn't quite put our finger on it, we decided to rehash the story of the apparently sleazy way KIUC's deal with Free Flow Power (FFP) went down.
But last night it all became clear after we read a Facebook posting by board member Ben Sullivan.
Sullivan for some reason has taken it upon himself to be the spokesperson for the board's insistence that they are not going to abandon the FERC permits or process in favor of what the FERC called the state's "long history of authorizing and regulating hydropower projects."
Last night, in a seemingly tone-deaf statement accompanying a notice for this week's three meetings regarding KIUC's remaining FERC hydroelectric projects, he wrote "I think our approach is a good one, we just have to make sure there is ample communication and that we work together during the evaluation."
"What approach?" we thought. "What communication? The insistence that the FERC process is the right one no matter what anyone says?"
All of a sudden it hit us. Part of the FERC ruling said essentially that they would no longer issue any more permits for the state of Hawai`i. And that makes KIUC's whole stated reason for using FERC in the first place no longer valid.
KIUC has repeatedly said that they had to use FERC because they were afraid someone else would take out preliminary permits and by doing so, under FERC rules, obtain sole rights to develop those projects. That, they said, would have put KIUC over a barrel of having to negotiate with whomever got the permit and buy the power- possibly at an inflated price- denying the coop actual ownership of the facilities.
But now that no one can get one of those preliminary (or final for that matter) permits, nobody can do that anymore so there's no reason that KIUC even needs a FERC permit anymore.
It's that simple.
But there was also one more claim made by Sullivan that flies in the face of KIUC's previous statements regarding the state regulatory process.
It has been a matter of some ambiguity as to whether there is or is not a state "process for approval" of hydropower in Hawai`i. But according to the FERC ruling “Hawai‘i has a long history of authorizing and regulating hydropower projects at the state level,” and has approved 13 projects throughout the state citing a recent one in Wailuku, Maui.
The whole problem with the FERC process, according to Don Heacock and Adam Asqueth- the two aquatic biologists who have been challenging the use of FERC's federal oversight- is that, due to a US Supreme Court (SCOTUS) ruling, the feds apparently have the power to usurp the state's excellent water use laws which protect whole watersheds and ecosystems, regulating stream flow, water distribution and use as well as other essential matters.
KIUC has maintained over and over that they will follow all state regulation and standards in using the FERC process for public participation and decision making, even pointing to a different SCOTUS ruling that they claim may rule out the usurping of state law.
But seemingly contradicting this is another statement made by Sullivan in Thursday’s article.
Sullivan said there are certain advantages to using FERC for permitting.
“One of the them is the cumbersome nature of the state process —and perhaps even the non-existence of a state process — and that’s an important issue we’ve discussed,” he said. “There’s high cost involved in a process that has no timeline for ending, and it’s difficult to know whether it’s in the members’ interest to even engage in such a process. The FERC avenue offers an alternate to that, potentially. It also lays out a process that we can limit, as you have suggested, and I think that it’s something that the staff is constantly working with the state to do.”
So in other words KIUC does NOT necessarily intend to honor all of the state's water laws as they pledged when state water authorities came out against the use of the FERC permitting.
There is apparently some honest- to-god, double-talking bullcrap going on with KIUC (what else is new). If you care, show up for one or all of this week's meetings and tell them to stop the prevarications and misrepresentations, abandon the FERC process and follow the state law... as they pledged they would.
The meetings are scheduled for Tuesday at Waimea Theater, Wednesday at Hanalei School cafeteria and Thursday at Kapa‘a Middle School cafeteria all from 6 to 7:30 p.m.
So on Thursday, when we couldn't quite put our finger on it, we decided to rehash the story of the apparently sleazy way KIUC's deal with Free Flow Power (FFP) went down.
But last night it all became clear after we read a Facebook posting by board member Ben Sullivan.
Sullivan for some reason has taken it upon himself to be the spokesperson for the board's insistence that they are not going to abandon the FERC permits or process in favor of what the FERC called the state's "long history of authorizing and regulating hydropower projects."
Last night, in a seemingly tone-deaf statement accompanying a notice for this week's three meetings regarding KIUC's remaining FERC hydroelectric projects, he wrote "I think our approach is a good one, we just have to make sure there is ample communication and that we work together during the evaluation."
"What approach?" we thought. "What communication? The insistence that the FERC process is the right one no matter what anyone says?"
All of a sudden it hit us. Part of the FERC ruling said essentially that they would no longer issue any more permits for the state of Hawai`i. And that makes KIUC's whole stated reason for using FERC in the first place no longer valid.
KIUC has repeatedly said that they had to use FERC because they were afraid someone else would take out preliminary permits and by doing so, under FERC rules, obtain sole rights to develop those projects. That, they said, would have put KIUC over a barrel of having to negotiate with whomever got the permit and buy the power- possibly at an inflated price- denying the coop actual ownership of the facilities.
But now that no one can get one of those preliminary (or final for that matter) permits, nobody can do that anymore so there's no reason that KIUC even needs a FERC permit anymore.
It's that simple.
But there was also one more claim made by Sullivan that flies in the face of KIUC's previous statements regarding the state regulatory process.
It has been a matter of some ambiguity as to whether there is or is not a state "process for approval" of hydropower in Hawai`i. But according to the FERC ruling “Hawai‘i has a long history of authorizing and regulating hydropower projects at the state level,” and has approved 13 projects throughout the state citing a recent one in Wailuku, Maui.
The whole problem with the FERC process, according to Don Heacock and Adam Asqueth- the two aquatic biologists who have been challenging the use of FERC's federal oversight- is that, due to a US Supreme Court (SCOTUS) ruling, the feds apparently have the power to usurp the state's excellent water use laws which protect whole watersheds and ecosystems, regulating stream flow, water distribution and use as well as other essential matters.
KIUC has maintained over and over that they will follow all state regulation and standards in using the FERC process for public participation and decision making, even pointing to a different SCOTUS ruling that they claim may rule out the usurping of state law.
But seemingly contradicting this is another statement made by Sullivan in Thursday’s article.
Sullivan said there are certain advantages to using FERC for permitting.
“One of the them is the cumbersome nature of the state process —and perhaps even the non-existence of a state process — and that’s an important issue we’ve discussed,” he said. “There’s high cost involved in a process that has no timeline for ending, and it’s difficult to know whether it’s in the members’ interest to even engage in such a process. The FERC avenue offers an alternate to that, potentially. It also lays out a process that we can limit, as you have suggested, and I think that it’s something that the staff is constantly working with the state to do.”
So in other words KIUC does NOT necessarily intend to honor all of the state's water laws as they pledged when state water authorities came out against the use of the FERC permitting.
There is apparently some honest- to-god, double-talking bullcrap going on with KIUC (what else is new). If you care, show up for one or all of this week's meetings and tell them to stop the prevarications and misrepresentations, abandon the FERC process and follow the state law... as they pledged they would.
The meetings are scheduled for Tuesday at Waimea Theater, Wednesday at Hanalei School cafeteria and Thursday at Kapa‘a Middle School cafeteria all from 6 to 7:30 p.m.
Thursday, October 27, 2011
WATCHING THE RIVER FLOW
WATCHING THE RIVER FLOW: Our old J-school prof's blue pencil used to wear thin on students' submissions in writing "sez who?" in the margins when their articles contained fully unattributed "facts." It's become one of our pet peeves too- at least add a "reportedly" or the all-inclusive "according to critics."
So it should be too much of a surprise that steam came shooting out of our ears once again this morning when another "according to who?" bit of bull-dinky appeared in a local newspaper article about KIUC's reaction to the FERC decision to "dismiss" two of their preliminary permits and ban future ones in the islands.
In the second paragraph of an article penned by Business Editor Vanessa Van Voorhis, apropos of nothing she writes:
Free Flow Power (FFP) of Massachusetts filed preliminary permit applications with the federal agency earlier this year for projects located on Koke‘e and Kekaha Ditch Irrigation systems. The permits, once issued, were to be turned over to KIUC, under a paid contract agreement with the co-op for an undisclosed amount (emphasis added).
Of course our readers know that that timeline is straight from the Kaua`i Island Utilities Coop's party line and has never been substantiated. As a matter of fact it appears that KIUC was presented with a "deal they couldn't refuse" after FFP obtained preliminary permits from the Federal Energy Regulatory Commission (FERC).
No one really knows for sure whether in fact KIUC actually approached FFP or the other way around because the Memorandum of Agreement (MOA)- the contract between FFP and KIUC- has been declared "proprietary information" by the supposedly member owned and run co-op.
But, as we wrote last July 6 just before the "vote" to invalidate the MOA was closed:
According to documents uncovered by reporter Joan Conrow and information that has been dragged out of KIUC CEO David Bissell and their attorney David Proudfoot, the MOAs came about after FFP filed for six- and already received at least three- FERC preliminary permits that allow the holder to exclusively investigate the possibility of constructing hydroelectric systems for the named areas, potentially leading to FERC licensing of the projects.
But those permits are non-transferable so FFP set up shell corporation to file for the permits and after they were granted they "sold" the shell corporations to KIUC under those MOAs.
There's a reason why we put sold in quotes. Because, according to the information repeated over and over by Bissell and Proudfoot, should the members vote no, the MOAs say that the permits would have to be turned over to FFP- AND we would have to pay them $325,000 to take them back to boot.
We also noted that:
People might be interested to know that the person who approached KIUC for FFP to set up the "offer they couldn't refuse" is said to be investment banker Bill Collett, the same person who set up the whole purchase of Kaua`i Electric from Citizen's Electric for an exorbitant amount of money that was still way more than the book value even after it was decreased by $50 million by the PUC.
But the local newspaper hasn't exactly been in the forefront of investigating the claims of its biggest advertiser, KIUC.
http://www.blogger.com/img/blank.gif
And it seems they're not about to start now.
The article also again raises the question of whether there is indeed a Hawai`i state process for permitting hydroelectric systems. As we first reported last week, in the FERC's dismissal of two of the permits they cited an established state process, one that had been used in developing 13 other hydroelectric projects in the state.
But while, according to the article, KIUC board member Ben Sullivan still questions whether there is an actual state process State Aquatic Biologist Don Heacock explained to us last week that the state process is the same one used for any other stream diversions.
He told us that, as he and Adam Asqueth- who led the effort to get KIUC to abandon federal oversight- said over and over during the membership vote in July, any hydropower effort must use the state standards for water flow and deal with them in light of the effects on the whole watershed and include effects on water use and diversion on the watershed as a whole.
According to the article Sullivan cited problems with the state process in the same breath as questioning whether there is one. But KIUC CEO David Bissell and Sullivan himself had claimed during the voting process that using FERC would never usurp any state regulations.
The article quotes Sullivan as saying:
“One of the (the problems) is the cumbersome nature of the state process —and perhaps even the non-existence of a state process — and that’s an important issue we’ve discussed... There’s high cost involved in a process that has no timeline for ending, and it’s difficult to know whether it’s in the members’ interest to even engage in such a process. The FERC avenue offers an alternate to that, potentially. It also lays out a process that we can limit, as you have suggested, and I think that it’s something that the staff is constantly working with the state to do.”
So which is it? Are they going to follow the state process or claim there isn't one and do a little as they can get away with?
The article also quotes Sullivan as saying "I do believe that we made some mistakes in the early going, but I do believe we’re doing our best in the interest of the community and continue on with an open mind and open options is the way to go,"
If that's at all true it's about time for him and the board to come clean about all the alleged FFP/FERC shenanigans, release the MOA, abandon the other permits and follow the state processes, as they promised during the vote.
So it should be too much of a surprise that steam came shooting out of our ears once again this morning when another "according to who?" bit of bull-dinky appeared in a local newspaper article about KIUC's reaction to the FERC decision to "dismiss" two of their preliminary permits and ban future ones in the islands.
In the second paragraph of an article penned by Business Editor Vanessa Van Voorhis, apropos of nothing she writes:
Free Flow Power (FFP) of Massachusetts filed preliminary permit applications with the federal agency earlier this year for projects located on Koke‘e and Kekaha Ditch Irrigation systems. The permits, once issued, were to be turned over to KIUC, under a paid contract agreement with the co-op for an undisclosed amount (emphasis added).
Of course our readers know that that timeline is straight from the Kaua`i Island Utilities Coop's party line and has never been substantiated. As a matter of fact it appears that KIUC was presented with a "deal they couldn't refuse" after FFP obtained preliminary permits from the Federal Energy Regulatory Commission (FERC).
No one really knows for sure whether in fact KIUC actually approached FFP or the other way around because the Memorandum of Agreement (MOA)- the contract between FFP and KIUC- has been declared "proprietary information" by the supposedly member owned and run co-op.
But, as we wrote last July 6 just before the "vote" to invalidate the MOA was closed:
According to documents uncovered by reporter Joan Conrow and information that has been dragged out of KIUC CEO David Bissell and their attorney David Proudfoot, the MOAs came about after FFP filed for six- and already received at least three- FERC preliminary permits that allow the holder to exclusively investigate the possibility of constructing hydroelectric systems for the named areas, potentially leading to FERC licensing of the projects.
But those permits are non-transferable so FFP set up shell corporation to file for the permits and after they were granted they "sold" the shell corporations to KIUC under those MOAs.
There's a reason why we put sold in quotes. Because, according to the information repeated over and over by Bissell and Proudfoot, should the members vote no, the MOAs say that the permits would have to be turned over to FFP- AND we would have to pay them $325,000 to take them back to boot.
We also noted that:
People might be interested to know that the person who approached KIUC for FFP to set up the "offer they couldn't refuse" is said to be investment banker Bill Collett, the same person who set up the whole purchase of Kaua`i Electric from Citizen's Electric for an exorbitant amount of money that was still way more than the book value even after it was decreased by $50 million by the PUC.
But the local newspaper hasn't exactly been in the forefront of investigating the claims of its biggest advertiser, KIUC.
http://www.blogger.com/img/blank.gif
And it seems they're not about to start now.
The article also again raises the question of whether there is indeed a Hawai`i state process for permitting hydroelectric systems. As we first reported last week, in the FERC's dismissal of two of the permits they cited an established state process, one that had been used in developing 13 other hydroelectric projects in the state.
But while, according to the article, KIUC board member Ben Sullivan still questions whether there is an actual state process State Aquatic Biologist Don Heacock explained to us last week that the state process is the same one used for any other stream diversions.
He told us that, as he and Adam Asqueth- who led the effort to get KIUC to abandon federal oversight- said over and over during the membership vote in July, any hydropower effort must use the state standards for water flow and deal with them in light of the effects on the whole watershed and include effects on water use and diversion on the watershed as a whole.
According to the article Sullivan cited problems with the state process in the same breath as questioning whether there is one. But KIUC CEO David Bissell and Sullivan himself had claimed during the voting process that using FERC would never usurp any state regulations.
The article quotes Sullivan as saying:
“One of the (the problems) is the cumbersome nature of the state process —and perhaps even the non-existence of a state process — and that’s an important issue we’ve discussed... There’s high cost involved in a process that has no timeline for ending, and it’s difficult to know whether it’s in the members’ interest to even engage in such a process. The FERC avenue offers an alternate to that, potentially. It also lays out a process that we can limit, as you have suggested, and I think that it’s something that the staff is constantly working with the state to do.”
So which is it? Are they going to follow the state process or claim there isn't one and do a little as they can get away with?
The article also quotes Sullivan as saying "I do believe that we made some mistakes in the early going, but I do believe we’re doing our best in the interest of the community and continue on with an open mind and open options is the way to go,"
If that's at all true it's about time for him and the board to come clean about all the alleged FFP/FERC shenanigans, release the MOA, abandon the other permits and follow the state processes, as they promised during the vote.
Thursday, October 20, 2011
(PNN) FERC DISMISSES PERMITS FOR TWO KAUA`I HYDRO PROJECTS IN FAVOR OF STATE REGULATION; CASTS DOUBT ON STATUS OF OTHERS
FERC DISMISSES PERMITS FOR TWO KAUA`I HYDRO PROJECTS IN FAVOR OF STATE REGULATION; CASTS DOUBT ON STATUS OF OTHERS
(PNN) -- The Federal Energy Regulatory Commission (FERC) has dismissed Free Flow Power's (FFP) and Kaua`i Island Utility Coop's (KIUC) preliminary permits for "Kahawai Power 4, LLC (Kahawai Power) and Kekaha Ditch Hydro, LLC (Kekaha Ditch Hydro)... to study the feasibility of a hydropower project on the Kekaha Ditch Irrigation System near the town of Waimea, Kauai County, Hawaii," according to an order issued today (Oct. 20).
The order is based on the fact that "another developer, Kekaha Ditch Hydro, was already pursuing (the project) through Hawaii’s state hydropower authorization process" calling KIUC's preliminary FERC permit "claim-jumping."
The order also casts doubt as to whether the rest of KIUC's preliminary permits will be allowed stand if the "potential for a preliminary permit issued by the Commission to interfere with existing development activities at the state level is significant."
"While we cannot let a state process interfere with our exclusive mandatory jurisdiction" the order states, "we do not want our preliminary permit program with respect to projects subject to permissive licensing to chill the development efforts of entities pursuing a legitimate state authorization process."
It is unclear what specific state process FERC is referring to. Previous reports and statements from KIUC, opponents of the FERC process and, in fact, state officials themselves have indicated there is no official written state process for developing and approving hydroelectric projects.
In an email today Adam Asquith who has led the opposition to using the FERC process for hydroelectric development on Kaua`i said
This ruling by FERC is significant and fully supports the arguments of the petitioners against the KIUC Board decision to use the FERC process on Kauai...KIUC should voluntarily withdraw all its preliminary permit applications and give up the ones that have been granted. This action would be consistent with the FERC ruling and KIUC's acknowledgment of its wrongful use of the FERC process.
The order indicated that all other FERC permits in Hawai`i- such as the one that, according to FFP's application, would dam the Wailua River- are in trouble too. In further explaining their decision FERC's order states that:
(FERC) has agreed, in a Memorandum of Understanding with the Department of the Interior, to not issue preliminary permits for hydrokinetic projects located on the Outer Continental Shelf. Such decisions are within our authority, so long as we provide adequate justification for them. Examining the facts in the cases before us leads us to conclude that, while the Commission cannot envision every set of facts that may be presented to it, as a general matter we will decline to issue preliminary permits for projects in Hawaii that would be subject to permissive section 4(e) licensing, unless the facts of the particular case present extenuating circumstances that would require the Commission to consider such an application.
The FERC order cited 13 other hydroelectric plants in Hawai`i that had undergone state permitting specifically referring to the example of the Wailuku River Hydroelectric Power Company plant which began producing electricity in May of 1993.
In allowing a state process to supersede the FERC permitting process- as opponents had demanded- the commission wrote that
(w)e note that filing a complete preliminary permit application with the Commission is significantly less demanding than the substantial efforts that appear to have taken place here under the state development process. Thus, the potential for a preliminary permit issued by the Commission to interfere with existing development activities at the state level is significant. While we cannot let a state process interfere with our exclusive mandatory jurisdiction, we do not want our preliminary permit program with respect to projects subject to permissive licensing to chill the development efforts of entities pursuing a legitimate state authorization process...
Nor do we want to force developers of projects not subject to mandatory licensing to engage in the federal authorization process when they have been successfully pursuing authorization from the state, simply because another entity has filed a preliminary permit application with the Commission for the same hydropower site.
The operative paragraph that indicates that KIUC's other hydroelectric projects that have received preliminary permits from FERC will be allowed to undergo state oversight without FERC involvement states that:
in order to avoid similar situations in the future, we will, as a general matter, decline to issue preliminary permits for projects in Hawaii that would be subject to permissive section 4(e) licensing. This proceeding demonstrates the potential for the Commission’s preliminary permitting process to interfere with hydropower development that is proceeding in accordance with a legitimate state authorization process.
(PNN) -- The Federal Energy Regulatory Commission (FERC) has dismissed Free Flow Power's (FFP) and Kaua`i Island Utility Coop's (KIUC) preliminary permits for "Kahawai Power 4, LLC (Kahawai Power) and Kekaha Ditch Hydro, LLC (Kekaha Ditch Hydro)... to study the feasibility of a hydropower project on the Kekaha Ditch Irrigation System near the town of Waimea, Kauai County, Hawaii," according to an order issued today (Oct. 20).
The order is based on the fact that "another developer, Kekaha Ditch Hydro, was already pursuing (the project) through Hawaii’s state hydropower authorization process" calling KIUC's preliminary FERC permit "claim-jumping."
The order also casts doubt as to whether the rest of KIUC's preliminary permits will be allowed stand if the "potential for a preliminary permit issued by the Commission to interfere with existing development activities at the state level is significant."
"While we cannot let a state process interfere with our exclusive mandatory jurisdiction" the order states, "we do not want our preliminary permit program with respect to projects subject to permissive licensing to chill the development efforts of entities pursuing a legitimate state authorization process."
It is unclear what specific state process FERC is referring to. Previous reports and statements from KIUC, opponents of the FERC process and, in fact, state officials themselves have indicated there is no official written state process for developing and approving hydroelectric projects.
In an email today Adam Asquith who has led the opposition to using the FERC process for hydroelectric development on Kaua`i said
This ruling by FERC is significant and fully supports the arguments of the petitioners against the KIUC Board decision to use the FERC process on Kauai...KIUC should voluntarily withdraw all its preliminary permit applications and give up the ones that have been granted. This action would be consistent with the FERC ruling and KIUC's acknowledgment of its wrongful use of the FERC process.
The order indicated that all other FERC permits in Hawai`i- such as the one that, according to FFP's application, would dam the Wailua River- are in trouble too. In further explaining their decision FERC's order states that:
(FERC) has agreed, in a Memorandum of Understanding with the Department of the Interior, to not issue preliminary permits for hydrokinetic projects located on the Outer Continental Shelf. Such decisions are within our authority, so long as we provide adequate justification for them. Examining the facts in the cases before us leads us to conclude that, while the Commission cannot envision every set of facts that may be presented to it, as a general matter we will decline to issue preliminary permits for projects in Hawaii that would be subject to permissive section 4(e) licensing, unless the facts of the particular case present extenuating circumstances that would require the Commission to consider such an application.
The FERC order cited 13 other hydroelectric plants in Hawai`i that had undergone state permitting specifically referring to the example of the Wailuku River Hydroelectric Power Company plant which began producing electricity in May of 1993.
In allowing a state process to supersede the FERC permitting process- as opponents had demanded- the commission wrote that
(w)e note that filing a complete preliminary permit application with the Commission is significantly less demanding than the substantial efforts that appear to have taken place here under the state development process. Thus, the potential for a preliminary permit issued by the Commission to interfere with existing development activities at the state level is significant. While we cannot let a state process interfere with our exclusive mandatory jurisdiction, we do not want our preliminary permit program with respect to projects subject to permissive licensing to chill the development efforts of entities pursuing a legitimate state authorization process...
Nor do we want to force developers of projects not subject to mandatory licensing to engage in the federal authorization process when they have been successfully pursuing authorization from the state, simply because another entity has filed a preliminary permit application with the Commission for the same hydropower site.
The operative paragraph that indicates that KIUC's other hydroelectric projects that have received preliminary permits from FERC will be allowed to undergo state oversight without FERC involvement states that:
in order to avoid similar situations in the future, we will, as a general matter, decline to issue preliminary permits for projects in Hawaii that would be subject to permissive section 4(e) licensing. This proceeding demonstrates the potential for the Commission’s preliminary permitting process to interfere with hydropower development that is proceeding in accordance with a legitimate state authorization process.
Wednesday, July 6, 2011
STOP MAKING SENSE
STOP MAKING SENSE: With Friday's high noon deadline for the ballots to be received in Kaua`i Island Utilities Co-op (KIUC) "Hydro Vote"- as they insist on calling it, with the words Federal Energy Regulatory Commission (FERC) being entirely absent on the the ballot- looming, the lack of full disclosure, straight talk and transparency in the process are what stand out to those voters who have done their own "due diligence."
In examining the ballot one question that hasn't received much attention is, what exactly are co-op members being asked to vote upon?
In asking "As a KIUC member do you approve of the Board action set out above?" the "above" part says, in main:
This ballot allows KIUC members to approve or reject a KIUC Board action that authorized contracting services for hydroelectric development and acquiring those hydroelectric assets...
A valid petition... requests a member vote on the KIUC Board’s action taken at its Regular Board Meeting on March 29, 2011, approving a Development Services Agreement and an LLC Assignment Agreement that had been negotiated by KIUC Staff with Free Flow Power Corporation.(emphasis added)
So in essence members are being asked whether they approve of the "Development Services Agreement and an LLC Assignment Agreement."
We aren't just being asked to approve or disapprove of a board decision. It's not the decision that's central to the vote. Instead members are being asked to approve or disapprove the contracts the board approved.
The problem is that, as we all know, those agreements- referred to as a Memoranda of Agreement or MOAs- are not being made available to the voters making the decision on whether they are in the best interest of members effectively impossible.
How exactly are members to decide if they approve of the "contracts" if they have no idea what exactly they say?
Well, that "Star Chamber" aspect of this whole affair will certainly be central to any legal action by "no" vote proponents should the co-op members approve of the contracts- that and KIUC's costly, "vote yes," disinformation campaign and suppressing the claims of the petitioners
That alone should be enough for a judge to grant an injunction to enjoin a suit to invalidate the vote, giving the shareholders- the co-op members- derivative injunctive relief, according to a legal expert we spoke to who asked not to be identified.
In other words, we were told, "the guy in the robe would, most likely, tell Proudfoot 'no way'" can you ask voters to approve or disapprove of a document they're not allowed to see.
But let's examine the central claims that we do know concerning the whole deal.
According to documents uncovered by reporter Joan Conrow and information that has been dragged out of KIUC CEO David Bissell and their attorney David Proudfoot, the MOAs came about after FFP filed for six- and already received at least three- FERC preliminary permits that allow the holder to exclusively investigate the possibility of constructing hydroelectric systems for the named areas, potentially leading to FERC licensing of the projects.
But those permits are non-transferable so FFP set up shell corporation to file for the permits and after they were granted they "sold" the shell corporations to KIUC under those MOAs.
There's a reason why we put sold in quotes. Because, according to the information repeated over and over by Bissell and Proudfoot, should the members vote no, the MOAs say that the permits would have to be turned over to FFP- AND we would have to pay them $325,000 to take them back to boot.
Of course we have no way to know how much of this is the truth because no one can see the MOAs. But one thing rises to the top.
If the preliminary permits were part of the deal to "purchase" the shell corporations- which KIUC apparently now "owns"- how can the "non-transferable" permits be transferred back to FFP? And why would we have to pay them almost a third of a million dollars for taking them off our hands?
Especially if the MOA has been invalidated by the vote- something that all involved knew was a possibility when they were signed.
Another note before we take a long weekend and await the vote...
People might be interested to know that the person who approached KIUC for FFP to set up the "offer they couldn't refuse" is said to be investment banker Bill Collett, the same person who set up the whole purchase of Kaua`i Electric from Citizen's Electric for an exorbitant amount of money that was still way more than the book value even after it was decreased by $50 million by the PUC.
We've heard from many of the opponents of the FERC process that they are waiting to see the outcome before filing suit, saying that they would be satisfied if the contract is rejected.
But frankly as someone who smells corruption behind the whole deal, at this point we care less about the outcome of the vote than the contents of the two contracts that are likely so explosive that KIUC would go to these extraordinary measures suppress contents.
Regardless of what happens at 12:00 noon on Friday we hope members will still be demanding to see those MOAs at 12:01 pm. Because if we don't you can be assured that we'll be right back here again after the board and executive staff of KIUC gets the message that they can get away with withholding vital information from its members.
In examining the ballot one question that hasn't received much attention is, what exactly are co-op members being asked to vote upon?
In asking "As a KIUC member do you approve of the Board action set out above?" the "above" part says, in main:
This ballot allows KIUC members to approve or reject a KIUC Board action that authorized contracting services for hydroelectric development and acquiring those hydroelectric assets...
A valid petition... requests a member vote on the KIUC Board’s action taken at its Regular Board Meeting on March 29, 2011, approving a Development Services Agreement and an LLC Assignment Agreement that had been negotiated by KIUC Staff with Free Flow Power Corporation.(emphasis added)
So in essence members are being asked whether they approve of the "Development Services Agreement and an LLC Assignment Agreement."
We aren't just being asked to approve or disapprove of a board decision. It's not the decision that's central to the vote. Instead members are being asked to approve or disapprove the contracts the board approved.
The problem is that, as we all know, those agreements- referred to as a Memoranda of Agreement or MOAs- are not being made available to the voters making the decision on whether they are in the best interest of members effectively impossible.
How exactly are members to decide if they approve of the "contracts" if they have no idea what exactly they say?
Well, that "Star Chamber" aspect of this whole affair will certainly be central to any legal action by "no" vote proponents should the co-op members approve of the contracts- that and KIUC's costly, "vote yes," disinformation campaign and suppressing the claims of the petitioners
That alone should be enough for a judge to grant an injunction to enjoin a suit to invalidate the vote, giving the shareholders- the co-op members- derivative injunctive relief, according to a legal expert we spoke to who asked not to be identified.
In other words, we were told, "the guy in the robe would, most likely, tell Proudfoot 'no way'" can you ask voters to approve or disapprove of a document they're not allowed to see.
But let's examine the central claims that we do know concerning the whole deal.
According to documents uncovered by reporter Joan Conrow and information that has been dragged out of KIUC CEO David Bissell and their attorney David Proudfoot, the MOAs came about after FFP filed for six- and already received at least three- FERC preliminary permits that allow the holder to exclusively investigate the possibility of constructing hydroelectric systems for the named areas, potentially leading to FERC licensing of the projects.
But those permits are non-transferable so FFP set up shell corporation to file for the permits and after they were granted they "sold" the shell corporations to KIUC under those MOAs.
There's a reason why we put sold in quotes. Because, according to the information repeated over and over by Bissell and Proudfoot, should the members vote no, the MOAs say that the permits would have to be turned over to FFP- AND we would have to pay them $325,000 to take them back to boot.
Of course we have no way to know how much of this is the truth because no one can see the MOAs. But one thing rises to the top.
If the preliminary permits were part of the deal to "purchase" the shell corporations- which KIUC apparently now "owns"- how can the "non-transferable" permits be transferred back to FFP? And why would we have to pay them almost a third of a million dollars for taking them off our hands?
Especially if the MOA has been invalidated by the vote- something that all involved knew was a possibility when they were signed.
Another note before we take a long weekend and await the vote...
People might be interested to know that the person who approached KIUC for FFP to set up the "offer they couldn't refuse" is said to be investment banker Bill Collett, the same person who set up the whole purchase of Kaua`i Electric from Citizen's Electric for an exorbitant amount of money that was still way more than the book value even after it was decreased by $50 million by the PUC.
We've heard from many of the opponents of the FERC process that they are waiting to see the outcome before filing suit, saying that they would be satisfied if the contract is rejected.
But frankly as someone who smells corruption behind the whole deal, at this point we care less about the outcome of the vote than the contents of the two contracts that are likely so explosive that KIUC would go to these extraordinary measures suppress contents.
Regardless of what happens at 12:00 noon on Friday we hope members will still be demanding to see those MOAs at 12:01 pm. Because if we don't you can be assured that we'll be right back here again after the board and executive staff of KIUC gets the message that they can get away with withholding vital information from its members.
Thursday, June 30, 2011
FOLLOWING THE MONEY
FOLLOWING THE MONEY: In addition to our wholesale advocacy of a "no" vote on this FERCin' mess KIUC has gotten us into with their capitulation to Free Flow Partners' (FFP) extortion, we've been doing quite a bit of retail, taking a slew of phone calls from people for whom computers are anathema- all essentially asking "WTF?".
Many just want an answer as to whether to vote "no" or "yes." But far more have read both the newspaper articles and the ballot itself along with KIUC's unbelievably slanted voters' guide.
Under "your no vote means" the guide makes the claim that:
The contracts with FFP will be terminated, and all preliminary permits will revert back to FFP. This will make progress on hydro in the near term very difficult and more expensive, and more than $325,000 in contractual obligations will be due to FFP.
Even those that have read both our coverage and Joan Conrow's awesome Honolulu Weekly article and meticulously researched and presented Gold Diggers (parts 1 and 2) blog posts have asked an important question.
Basically they ask "well, yes- the whole deal stinks and we should never have entered into any deal with FFP. But now that we have we stand to lose $325,000 (some reports claim it's as high as $400,000) which will inevitably show up on our bill. And we will have paid that money and not be any closer to hydroelectric power project development. Shouldn't I vote 'yes?'"
The answer to the first part is that while yes, it will cost hundreds of thousands to cancel the deal with FFP, many have not heard or glossed over a quote from Conrow's Honolulu Weekly piece which says that:
Bissell said no specific price was placed on the applications, which were purchased as part of a larger consulting contract. The utility has refused to disclose the full value of the contract, which includes an incentive for delivering completed projects, but KIUC attorney David Proudfoot said FFP will be paid “several million dollars if none go past the first stage."
Given the opposition to FERC and the likelihood that, with the state's long-standing opposition and threats to sue, we will never proceed to full FERC licensing. What a yes vote means is that, although we'll have to forfeit the $325K we'd potentially be throwing away a lot more.
As Conrow concluded in her second Gold Digger post:
In its permitted applications, FFP states, “The studies will be financed by the applicant.” No mention is made of KIUC. For each project, FFP estimates the cost of doing all the first-year studies — the feasibility stuff — at $100,000. The rest of the work — consultations, developing a notice of intent and pre-application document, and beginning scoping activities — is estimated to “not exceed $500,000."
So even if FFP were to take all six projects all the way up to the license application, it would cost no more than $3.6 million. KIUC won’t tell us exactly what we’re paying, but KIUC attorney David Proudfoot told us at the June 4 community meeting that FFP will be paid “several million dollars if none go past the first stage.”
Several is defined as “more than or three but not many.” So it sounds like we’re paying close to, if not more than, the full estimated price for bringing all six projects through the first stage, even though KIUC CEO David Bissell and some Board members have acknowledged that some of the projects will never get off the ground.
On top of that, FFP will get an incentive for delivering completed projects.
The second question is a bit trickier but perhaps more revealing.
The reason why KIUC says it is going through the FERC is that there is no state process for developing hydro. But we must remember a couple of things.
What many including petition initiator Adam Asquith have said, is that what we should have done- and should do- is to go to the state and say "we want to do hydroelectric projects and want to work with the state to establish a system for development and introduce and pass enabling legislation and eventually administrative rules so that we can develop environmentally and culturally sensitive and water-wise projects into the future.
And, as a matter of fact, a good place to start is the KIUC ballyhooed flow chart that FERC has already developed for public participation and alter it for our unique water laws.
Certainly we're not the only ones in the state who want to develop hydropower. HELCO has the same renewable energy portfolio requirements as KIUC for the other islands. If and when they wake up to the insanity of their "Big Wind" project and the fact that it is doomed to failure, hydroelectric is probably the next best technology in terms of cost of both development and future rates.
But whether through pure laziness, corruption or pure stupidity the KIUC board of directors and administrative staff seems hell bent on committing us to a costly and widely-opposed way of going about it- one that, even if it were to succeed, would still leave us without a simpler, less costly statewide system for the next round of hydroelectric development.
The $325-400,000 we stand to lose in a "no" vote is peanuts compared to the cost of a "yes" vote down the road. Whether as a way to say no to FERC or to, in fact, SAVE us money, a "no" vote is the best option to get us out of this mess that the board of KIUC has gotten us into.
That and remembering this fiasco during the next KIUC board of directors election.
Many just want an answer as to whether to vote "no" or "yes." But far more have read both the newspaper articles and the ballot itself along with KIUC's unbelievably slanted voters' guide.
Under "your no vote means" the guide makes the claim that:
The contracts with FFP will be terminated, and all preliminary permits will revert back to FFP. This will make progress on hydro in the near term very difficult and more expensive, and more than $325,000 in contractual obligations will be due to FFP.
Even those that have read both our coverage and Joan Conrow's awesome Honolulu Weekly article and meticulously researched and presented Gold Diggers (parts 1 and 2) blog posts have asked an important question.
Basically they ask "well, yes- the whole deal stinks and we should never have entered into any deal with FFP. But now that we have we stand to lose $325,000 (some reports claim it's as high as $400,000) which will inevitably show up on our bill. And we will have paid that money and not be any closer to hydroelectric power project development. Shouldn't I vote 'yes?'"
The answer to the first part is that while yes, it will cost hundreds of thousands to cancel the deal with FFP, many have not heard or glossed over a quote from Conrow's Honolulu Weekly piece which says that:
Bissell said no specific price was placed on the applications, which were purchased as part of a larger consulting contract. The utility has refused to disclose the full value of the contract, which includes an incentive for delivering completed projects, but KIUC attorney David Proudfoot said FFP will be paid “several million dollars if none go past the first stage."
Given the opposition to FERC and the likelihood that, with the state's long-standing opposition and threats to sue, we will never proceed to full FERC licensing. What a yes vote means is that, although we'll have to forfeit the $325K we'd potentially be throwing away a lot more.
As Conrow concluded in her second Gold Digger post:
In its permitted applications, FFP states, “The studies will be financed by the applicant.” No mention is made of KIUC. For each project, FFP estimates the cost of doing all the first-year studies — the feasibility stuff — at $100,000. The rest of the work — consultations, developing a notice of intent and pre-application document, and beginning scoping activities — is estimated to “not exceed $500,000."
So even if FFP were to take all six projects all the way up to the license application, it would cost no more than $3.6 million. KIUC won’t tell us exactly what we’re paying, but KIUC attorney David Proudfoot told us at the June 4 community meeting that FFP will be paid “several million dollars if none go past the first stage.”
Several is defined as “more than or three but not many.” So it sounds like we’re paying close to, if not more than, the full estimated price for bringing all six projects through the first stage, even though KIUC CEO David Bissell and some Board members have acknowledged that some of the projects will never get off the ground.
On top of that, FFP will get an incentive for delivering completed projects.
The second question is a bit trickier but perhaps more revealing.
The reason why KIUC says it is going through the FERC is that there is no state process for developing hydro. But we must remember a couple of things.
What many including petition initiator Adam Asquith have said, is that what we should have done- and should do- is to go to the state and say "we want to do hydroelectric projects and want to work with the state to establish a system for development and introduce and pass enabling legislation and eventually administrative rules so that we can develop environmentally and culturally sensitive and water-wise projects into the future.
And, as a matter of fact, a good place to start is the KIUC ballyhooed flow chart that FERC has already developed for public participation and alter it for our unique water laws.
Certainly we're not the only ones in the state who want to develop hydropower. HELCO has the same renewable energy portfolio requirements as KIUC for the other islands. If and when they wake up to the insanity of their "Big Wind" project and the fact that it is doomed to failure, hydroelectric is probably the next best technology in terms of cost of both development and future rates.
But whether through pure laziness, corruption or pure stupidity the KIUC board of directors and administrative staff seems hell bent on committing us to a costly and widely-opposed way of going about it- one that, even if it were to succeed, would still leave us without a simpler, less costly statewide system for the next round of hydroelectric development.
The $325-400,000 we stand to lose in a "no" vote is peanuts compared to the cost of a "yes" vote down the road. Whether as a way to say no to FERC or to, in fact, SAVE us money, a "no" vote is the best option to get us out of this mess that the board of KIUC has gotten us into.
That and remembering this fiasco during the next KIUC board of directors election.
Monday, June 27, 2011
WHILE WE'RE ON THE SUBJECT
WHILE WE'RE ON THE SUBJECT: Oh there was fear. Oh there was loathing.
But the when KIUC CEO David Bissell "debated" anti-FERC petition originator Adam Asquith at a packed Kapa`a Library conference room on Saturday there was mostly misdirection and stonewalling on Bissell's part- especially when we asked about the origins of KIUC's dealing with Free Flow Partners (FFP).
We decided to confront Bissell as to how exactly the deal came about, quoting a Honolulu Weekly article by Joan Conrow that made pretty clear that FFP had gotten the preliminary Federal Energy Regulatory Commission (FERC) permits, set up shell corporations and then held a gun to KIUC's head forcing them to either deal with FFP to get dibs on the exclusive right to develop six water runs on Kaua`i for hydroelectric or FFP would tie up the rights indefinitely.
Bissell at first denied that the permits were issued before KIUC's initial involvement (which Bissell said was last October) something documentation reveals to be a lie. But then, when we were allowed a followup question, he refused to say who exactly approached whom and how the deal was struck other than saying an unidentified intermediary brought the parties together, saying "what difference does it make?".
We approached Bissell after the meeting seeking to get some answers to that matter as well as a couple of others. But Bissell as soon as we approached him as he spoke to others, quickly scurried to his car, saying he would not answer any more questions and leaving us, note pad in hand, chasing him through the library parking lot.
So what is the truth? Well, according to Conrow's blog post today, the truth is that "FFP had already done the “poaching” by filing its applications for hydro projects on Kauai waterways prior to entering into a contract with KIUC."
Not only does she clarify and reiterate what we suspected she was saying on Friday but she details how "it appears the circumstances that led to their union were more akin to a shotgun wedding than a love match. What’s more, it seems that “grab 'em with both hands” is FFP’s standard MO."
Seems that, although FFP hasn't developed a single project as opponents have reiterated, they have scooped up hundreds of these "preliminary permits" across the country including "141 project sites covering all but a few miles of (an) 850-mile reach of the (Mississippi) river" causing FREC "to decline to issue additional permits on this stretch of river, and instead allow potential developers to advance their projects through the commission's licensing process."
Another part of their scam seems to be to find existing dams without any hydro projects and get permits for exploring exclusive development.
While we suggest you read Conrow's post today for all the gory details of that and other FFP mainland scams, what remains is yet another reason to distrust Bissell himself and everything that comes out of his mouth.
The other questions we didn't get answered included one as to why the "members" of the co-op aren't entitled to examine full Memorandum of Agreement (MOA) between KIUC and FFP which, as far as we have been able to determine by asking board members, is "confidential" for no particular reason other than it's confidential.
One thing that Bissell refused to say was whether KIUC would commit to abandon the seeking of full FERC licensing, in light of the contention of late that KIUC/FFP has only obtained "preliminary permits" to look into hydroelectric projects on Kaua`i and not full "FERC licensing"- the latter of which is opposed by the state DLNR's water division chief and attorney general's office.
It's particularity irksome that Bissell has claimed that, because there is no state process for hydro development, we need to follow the "FERC process" contained in a flow chart that was waved about at the dais. But he avoided commenting on why that process couldn’t be followed without FERC.
Could it be that the reason why KIUC never approached the state to set up a state-based process for developing hydro was because FFP had already gotten the preliminary permits and was holding a gun to KIUC's head saying that they would hold up any hydro development indefinitely unless KIUC signed on the dotted line?
That would sure explain a lot of things such as why all of a sudden without any advance notice KIUC was suddenly gung ho for hydroelectric development. It would also explain why they signed an MOA that "purchases" the permits and shell corporations but allows both to revert to FFP should KIUC change its mind, as will happen should the ballots be returned with more "no" than "yes" votes.
We had prepared a question for Bissell on the off-chance that we would get a second round at the meeting along the lines of "given that almost everyone- including some board members- agrees that your communications with the public have so far been severely bungled with a lack of transparency, the 'no FERC, no hydro' threat and the refusal to release the MOA, is there anything you'd personally do differently if you had it to do over?".
But after the a couple of hours of misinformation, threats, misdirection and, when necessary, stonewalling in reiterating all the past bunk we've been fed, the question seemed to have answered itself.
But the when KIUC CEO David Bissell "debated" anti-FERC petition originator Adam Asquith at a packed Kapa`a Library conference room on Saturday there was mostly misdirection and stonewalling on Bissell's part- especially when we asked about the origins of KIUC's dealing with Free Flow Partners (FFP).
We decided to confront Bissell as to how exactly the deal came about, quoting a Honolulu Weekly article by Joan Conrow that made pretty clear that FFP had gotten the preliminary Federal Energy Regulatory Commission (FERC) permits, set up shell corporations and then held a gun to KIUC's head forcing them to either deal with FFP to get dibs on the exclusive right to develop six water runs on Kaua`i for hydroelectric or FFP would tie up the rights indefinitely.
Bissell at first denied that the permits were issued before KIUC's initial involvement (which Bissell said was last October) something documentation reveals to be a lie. But then, when we were allowed a followup question, he refused to say who exactly approached whom and how the deal was struck other than saying an unidentified intermediary brought the parties together, saying "what difference does it make?".
We approached Bissell after the meeting seeking to get some answers to that matter as well as a couple of others. But Bissell as soon as we approached him as he spoke to others, quickly scurried to his car, saying he would not answer any more questions and leaving us, note pad in hand, chasing him through the library parking lot.
So what is the truth? Well, according to Conrow's blog post today, the truth is that "FFP had already done the “poaching” by filing its applications for hydro projects on Kauai waterways prior to entering into a contract with KIUC."
Not only does she clarify and reiterate what we suspected she was saying on Friday but she details how "it appears the circumstances that led to their union were more akin to a shotgun wedding than a love match. What’s more, it seems that “grab 'em with both hands” is FFP’s standard MO."
Seems that, although FFP hasn't developed a single project as opponents have reiterated, they have scooped up hundreds of these "preliminary permits" across the country including "141 project sites covering all but a few miles of (an) 850-mile reach of the (Mississippi) river" causing FREC "to decline to issue additional permits on this stretch of river, and instead allow potential developers to advance their projects through the commission's licensing process."
Another part of their scam seems to be to find existing dams without any hydro projects and get permits for exploring exclusive development.
While we suggest you read Conrow's post today for all the gory details of that and other FFP mainland scams, what remains is yet another reason to distrust Bissell himself and everything that comes out of his mouth.
The other questions we didn't get answered included one as to why the "members" of the co-op aren't entitled to examine full Memorandum of Agreement (MOA) between KIUC and FFP which, as far as we have been able to determine by asking board members, is "confidential" for no particular reason other than it's confidential.
One thing that Bissell refused to say was whether KIUC would commit to abandon the seeking of full FERC licensing, in light of the contention of late that KIUC/FFP has only obtained "preliminary permits" to look into hydroelectric projects on Kaua`i and not full "FERC licensing"- the latter of which is opposed by the state DLNR's water division chief and attorney general's office.
It's particularity irksome that Bissell has claimed that, because there is no state process for hydro development, we need to follow the "FERC process" contained in a flow chart that was waved about at the dais. But he avoided commenting on why that process couldn’t be followed without FERC.
Could it be that the reason why KIUC never approached the state to set up a state-based process for developing hydro was because FFP had already gotten the preliminary permits and was holding a gun to KIUC's head saying that they would hold up any hydro development indefinitely unless KIUC signed on the dotted line?
That would sure explain a lot of things such as why all of a sudden without any advance notice KIUC was suddenly gung ho for hydroelectric development. It would also explain why they signed an MOA that "purchases" the permits and shell corporations but allows both to revert to FFP should KIUC change its mind, as will happen should the ballots be returned with more "no" than "yes" votes.
We had prepared a question for Bissell on the off-chance that we would get a second round at the meeting along the lines of "given that almost everyone- including some board members- agrees that your communications with the public have so far been severely bungled with a lack of transparency, the 'no FERC, no hydro' threat and the refusal to release the MOA, is there anything you'd personally do differently if you had it to do over?".
But after the a couple of hours of misinformation, threats, misdirection and, when necessary, stonewalling in reiterating all the past bunk we've been fed, the question seemed to have answered itself.
Wednesday, June 22, 2011
JUST FERCIN' WITH YA
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.
Clearly.
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.
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.
Clearly.
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.
Monday, June 20, 2011
(PNN/gw?) REJECT EXTORTION, LIES, INCOMPETENCE; VOTE "NO" ON KIUC'S BALLOT MEASURE
PNN: REJECT EXTORTION, LIES, INCOMPETENCE; VOTE "NO" ON KIUC'S BALLOT MEASURE
Please vote "no" to the ballot measure that recently arrived in your mailbox and send KIUC a message that subterfuge, laziness and a lack of due diligence is not acceptable.
The issue is not hydro-electric power development as they would have you believe but Kaua`i Island Utilities Co-op's (KIUC) ill-considered decision to engage in the Federal Energy Regulatory Commission (FERC) process despite the state Department of Land and Natural Resources' (DLNR) opposition to the use of FERC in Hawai`i- opposition which dates back to a previous attempt to use FERC in the 1990's.
Not only did the KIUC board of directors either ignore or fail to discover the state's opposition but they were apparently unaware of a US Supreme Court case, California vs. FERC, which would give FERC the power to override the unique water use laws of Hawai`i.
The FERC process is so odious that Senator Daniel Akaka (D- HI) introduced legislation to remove Hawai`i from FREC control.
The KIUC board of directors was sold a bill of goods by new KIUC CEO David Bissell apparently, whether by malpractice or malfeasance, without discovering these factors and now has used lies and an overwhelming expenditure of co-op funds for a PR campaign to try to make people believe that they must vote "yes" in order to ever develop hydroelectric facilities on Kaua`i.
Nothing could be further from the truth. But the board has continued to try to make up for the lack of attention to their true fiduciary responsibilities- to serve the members of the co-op- and instead protect themselves from being accused of blowing, by some reports, up to $400,000 which has already been spent.
If KIUC members don't stop the process here it could cost KIUC members even more in defending a planned intervention by the state attorney general’s office as well as planned lawsuits by opponents federal control of Hawai`i water resources.
According to a Pacific Business News interview with William Tam, deputy director for water at DLNR, Tam threatened the intervention saying that
"the state does not want Hawai‘i’s in-stream flow standards to be decided by a federal agency in Washington D.C. that does not have any experience with or understand Hawai‘i’s streams. Hawai‘i stream-flow standards should not be decided 5,000 miles away where it’s very hard for the people of Hawai‘i to effectively participate.”
In the Supreme Court of the US (SCOTUS) case the justices ruled that FERC's rules trump state regulations if the two conflict, despite assurances from Bissell and KIUC attorney David Proudfoot that all state regulations will be followed.
The fact is that Bissell, Proudfoot and the board have refused to directly engage with opponents on the specifics of the FERC process raised by Tam, Akaka and the SCOTUS ruling, rather taking a paternalistic "trust us" tact.
But trust is difficult if not impossible given KIUC's track record and the surreptitiousness of the vote to engage Free Flow Partners- the company applying for the FERC permits with which KIUC has a so far secret "memorandum of agreement."
Though they promise to engage "stakeholders" from now on, not only is the damage to any trust already done but they have made it clear that on the key issue of FERC involvement they will not budge no matter what future discussions with the community yield.
As a matter of fact Bissell and Proudfoot have admitted using the fact that they controlled the "voters' guide" that came with the ballot to misrepresent opponents' views.
An article in the local Kaua`i newspaper states that:
KIUC legal counsel David Proudfoot acknowledged the petition was ultimately about FERC issues, but indicated the co-op was not required to state the position of the opposition.
“There is a difference between the ballot, which needs to be neutral, and which is neutral, and the position of KIUC and its board,” Proudfoot said. “KIUC and its board, who were elected by its members, they obviously believe in the process they are using and they’re entitled to support it. They are not required to help someone else support their decision, that they don’t like, with the members’ money.”
(Opponent Pat) Gegen asked, “And that’s a democratic process?”
“Yes, it is,” Proudfood said. “Of the 250 members that signed the petition, if they want to be able to PR their case, they can do it as much as they want, but it’s not up to KIUC, who doesn’t believe in their position, to pay their money for it. It’s no different than any political democratic process. If you’re a republican, you don’t pay the democrats for their publicity. They pay their own and that’s why the Voters Guide is very carefully labeled as the KIUC Voters Guide.”
It's apparent that the extortionate efforts by KIUC to misrepresent the issue by threatening Kaua`i with a "vote yes or you will never have hydro" lie are, in and of themselves, a reason for continued mistrust.
In fact, an effort to recall all board members and fire Bissell and Proudfoot is being discussed by opponents of the decision to engage with FERC.
Don't knuckle under to KIUC's threats to deny us hydroelectric projects or believe the prevarications, misrepresentations and efforts to overwhelm us with false PR statements by voting "no" on the KIUC FERC "hydro" ballot measure.
Please vote "no" to the ballot measure that recently arrived in your mailbox and send KIUC a message that subterfuge, laziness and a lack of due diligence is not acceptable.
The issue is not hydro-electric power development as they would have you believe but Kaua`i Island Utilities Co-op's (KIUC) ill-considered decision to engage in the Federal Energy Regulatory Commission (FERC) process despite the state Department of Land and Natural Resources' (DLNR) opposition to the use of FERC in Hawai`i- opposition which dates back to a previous attempt to use FERC in the 1990's.
Not only did the KIUC board of directors either ignore or fail to discover the state's opposition but they were apparently unaware of a US Supreme Court case, California vs. FERC, which would give FERC the power to override the unique water use laws of Hawai`i.
The FERC process is so odious that Senator Daniel Akaka (D- HI) introduced legislation to remove Hawai`i from FREC control.
The KIUC board of directors was sold a bill of goods by new KIUC CEO David Bissell apparently, whether by malpractice or malfeasance, without discovering these factors and now has used lies and an overwhelming expenditure of co-op funds for a PR campaign to try to make people believe that they must vote "yes" in order to ever develop hydroelectric facilities on Kaua`i.
Nothing could be further from the truth. But the board has continued to try to make up for the lack of attention to their true fiduciary responsibilities- to serve the members of the co-op- and instead protect themselves from being accused of blowing, by some reports, up to $400,000 which has already been spent.
If KIUC members don't stop the process here it could cost KIUC members even more in defending a planned intervention by the state attorney general’s office as well as planned lawsuits by opponents federal control of Hawai`i water resources.
According to a Pacific Business News interview with William Tam, deputy director for water at DLNR, Tam threatened the intervention saying that
"the state does not want Hawai‘i’s in-stream flow standards to be decided by a federal agency in Washington D.C. that does not have any experience with or understand Hawai‘i’s streams. Hawai‘i stream-flow standards should not be decided 5,000 miles away where it’s very hard for the people of Hawai‘i to effectively participate.”
In the Supreme Court of the US (SCOTUS) case the justices ruled that FERC's rules trump state regulations if the two conflict, despite assurances from Bissell and KIUC attorney David Proudfoot that all state regulations will be followed.
The fact is that Bissell, Proudfoot and the board have refused to directly engage with opponents on the specifics of the FERC process raised by Tam, Akaka and the SCOTUS ruling, rather taking a paternalistic "trust us" tact.
But trust is difficult if not impossible given KIUC's track record and the surreptitiousness of the vote to engage Free Flow Partners- the company applying for the FERC permits with which KIUC has a so far secret "memorandum of agreement."
Though they promise to engage "stakeholders" from now on, not only is the damage to any trust already done but they have made it clear that on the key issue of FERC involvement they will not budge no matter what future discussions with the community yield.
As a matter of fact Bissell and Proudfoot have admitted using the fact that they controlled the "voters' guide" that came with the ballot to misrepresent opponents' views.
An article in the local Kaua`i newspaper states that:
KIUC legal counsel David Proudfoot acknowledged the petition was ultimately about FERC issues, but indicated the co-op was not required to state the position of the opposition.
“There is a difference between the ballot, which needs to be neutral, and which is neutral, and the position of KIUC and its board,” Proudfoot said. “KIUC and its board, who were elected by its members, they obviously believe in the process they are using and they’re entitled to support it. They are not required to help someone else support their decision, that they don’t like, with the members’ money.”
(Opponent Pat) Gegen asked, “And that’s a democratic process?”
“Yes, it is,” Proudfood said. “Of the 250 members that signed the petition, if they want to be able to PR their case, they can do it as much as they want, but it’s not up to KIUC, who doesn’t believe in their position, to pay their money for it. It’s no different than any political democratic process. If you’re a republican, you don’t pay the democrats for their publicity. They pay their own and that’s why the Voters Guide is very carefully labeled as the KIUC Voters Guide.”
It's apparent that the extortionate efforts by KIUC to misrepresent the issue by threatening Kaua`i with a "vote yes or you will never have hydro" lie are, in and of themselves, a reason for continued mistrust.
In fact, an effort to recall all board members and fire Bissell and Proudfoot is being discussed by opponents of the decision to engage with FERC.
Don't knuckle under to KIUC's threats to deny us hydroelectric projects or believe the prevarications, misrepresentations and efforts to overwhelm us with false PR statements by voting "no" on the KIUC FERC "hydro" ballot measure.
Thursday, June 9, 2011
FERC YOU
FERC YOU: Anyone surprised at the FERC KIUC debacle wave your electricity bill in the air.
Okay- you can go back to sleep now. Because unless you were under the proverbial rock for the past decade you must have been fast asleep to be shocked at anything "this co-op" does.
Since day one when barnacle-on-the-butt-of-Kaua`i Gregg Gardiner convinced a group of good old boys and girls and Democratic Party bosses to pay way too much for the liability that was Citizen’s Electric- and stick the resultant debt on the backs of the island working people- the hew and cry of warnings has been a loud if ineffective undercurrent of stomach churning rage from rate payers.
"We're all for a co-op- just not THIS co-op" was the slogan of the original "nitpickers" whose moniker was proudly taken from former Mayor Marianne Kusaka's attempt to denigrate the effort that saved members $50 million and should have brought the price down by another hundred million.
But the makeup of the board was a who's who of the then, two factions of the Democratic Party- the old guard represented by aging, "442nd" party boss Turk Tokita vs the new guard of then-former Mayor and then-out-of-politics progressive JoAnn Yukimura.
And when the bylaws and rules were forced down the throats of members in an all-or-nothing vote- removing the promised precepts of the Sunshine law and giving all power to the board- the course was set for today's dictatorial decision-making by a handful of the power elite.
With today's news from Pacific Business News (via the local newspaper) that William Tam, deputy director for water at DLNR said that "the state does not want Hawai‘i's (sic) in-stream flow standards to be decided by a federal agency in Washington D.C. that does not have any experience with or understand Hawai‘i’s streams" and the announcement of an effort from anti-FREC forces leader Adam Asquith to get signatures to a full page ad fully explaining all that's insanely stupid about going through the feds, the tide seems to be turning- that despite the "that's my story and I'm stickin' to it" stance of the stumble-bums on the KIUC board.
And that includes the original three opponents- Carol Bain, Ben Sullivan and Jan TenBruggencate who were elected to be the voice of reason but who now, reportedly, have switched sides.
What the board seems to have forgotten are the lessons of another recent debacle- the ill-conceived and supremely bungled Superferry and the resultant battle.
The reason why, shockingly, the people of Kaua`i seemed to oppose the big bad boat was not the boat itself but for the way it usurped the processes that, although usually ineffective, are at least supposedly there to protect us from deregulatory invasion from Washington D.C. and Honolulu.
Just as the feds and state conspired to remove the environmental assessment and impact statement process for the Superferry, once again a bunch of power mongers have decided to allow a federal process to negate the unique water rights and management laws that have been carefully developed over decades in Hawai`i.
Then when challenged the powerful wielded their power to lie and deceive in such a blatant way that nobody failed to get the "sit down and shut up" message that General Linda Lingle and her unified command threw in the faces of those who usually, unless riled up by a lack of respect, act like sheeple.
And now though few understand the ins and outs of water usage, citizens feel the same kind of "like it or lump it" missive coming from elected officials who fail to get the message that their arrogance, not the project, is the becoming the issue.
Though it's too early to tell the rising tide of indignation over the attempted FERC KIUC sleight-of-hand indicates that the same kind of outrage that swept the island over the Superferry fiasco might just be at hand.
Because, as "this co-op" circles the wagons, the natives are getting restless.
Okay- you can go back to sleep now. Because unless you were under the proverbial rock for the past decade you must have been fast asleep to be shocked at anything "this co-op" does.
Since day one when barnacle-on-the-butt-of-Kaua`i Gregg Gardiner convinced a group of good old boys and girls and Democratic Party bosses to pay way too much for the liability that was Citizen’s Electric- and stick the resultant debt on the backs of the island working people- the hew and cry of warnings has been a loud if ineffective undercurrent of stomach churning rage from rate payers.
"We're all for a co-op- just not THIS co-op" was the slogan of the original "nitpickers" whose moniker was proudly taken from former Mayor Marianne Kusaka's attempt to denigrate the effort that saved members $50 million and should have brought the price down by another hundred million.
But the makeup of the board was a who's who of the then, two factions of the Democratic Party- the old guard represented by aging, "442nd" party boss Turk Tokita vs the new guard of then-former Mayor and then-out-of-politics progressive JoAnn Yukimura.
And when the bylaws and rules were forced down the throats of members in an all-or-nothing vote- removing the promised precepts of the Sunshine law and giving all power to the board- the course was set for today's dictatorial decision-making by a handful of the power elite.
With today's news from Pacific Business News (via the local newspaper) that William Tam, deputy director for water at DLNR said that "the state does not want Hawai‘i's (sic) in-stream flow standards to be decided by a federal agency in Washington D.C. that does not have any experience with or understand Hawai‘i’s streams" and the announcement of an effort from anti-FREC forces leader Adam Asquith to get signatures to a full page ad fully explaining all that's insanely stupid about going through the feds, the tide seems to be turning- that despite the "that's my story and I'm stickin' to it" stance of the stumble-bums on the KIUC board.
And that includes the original three opponents- Carol Bain, Ben Sullivan and Jan TenBruggencate who were elected to be the voice of reason but who now, reportedly, have switched sides.
What the board seems to have forgotten are the lessons of another recent debacle- the ill-conceived and supremely bungled Superferry and the resultant battle.
The reason why, shockingly, the people of Kaua`i seemed to oppose the big bad boat was not the boat itself but for the way it usurped the processes that, although usually ineffective, are at least supposedly there to protect us from deregulatory invasion from Washington D.C. and Honolulu.
Just as the feds and state conspired to remove the environmental assessment and impact statement process for the Superferry, once again a bunch of power mongers have decided to allow a federal process to negate the unique water rights and management laws that have been carefully developed over decades in Hawai`i.
Then when challenged the powerful wielded their power to lie and deceive in such a blatant way that nobody failed to get the "sit down and shut up" message that General Linda Lingle and her unified command threw in the faces of those who usually, unless riled up by a lack of respect, act like sheeple.
And now though few understand the ins and outs of water usage, citizens feel the same kind of "like it or lump it" missive coming from elected officials who fail to get the message that their arrogance, not the project, is the becoming the issue.
Though it's too early to tell the rising tide of indignation over the attempted FERC KIUC sleight-of-hand indicates that the same kind of outrage that swept the island over the Superferry fiasco might just be at hand.
Because, as "this co-op" circles the wagons, the natives are getting restless.
Subscribe to:
Posts (Atom)
