ELECTROCUTION ELOCUTION

ELECTROCUTION ELOCUTION: Perhaps the biggest chuckle we got during the whole KIUC FERC vote debacle was the electric co-op's promise that, like any five year old who had lied and misbehaved, they would never do it again.

So the new era of openness and transparency that was promised after the vote failed, is upon us, right?

OK you can stop laughing now. Because as many have heard, after the second petition- one to try to force a re-vote due to the massive abuse of the voting process on KIUC's part- allegedly failed to garner enough signatures, they wouldn't even allow the petitioners to go over the petition and the membership list to ascertain the co-op's claim that many of the signatures were either duplicates or those of non-members.

But for a real eyeful of what the future of "member relations" is going to look like nothing can beat the "Fear and Loathing" style first hand account of Tuesday's KIUC Board meeting by Tek Nickerson- a regular guy who was outraged by many of the things he saw and got involved with the second petition.

So we hand over the rest of today's column to Tek's "report" on what went down (all SIC).

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UPDATE ON PETITION TO RECALL ELECTION by Tek Nickerson

KIUC held their regularly scheduled Board meeting yesterday, Tuesday, 7.26.11. In response to the Members’ Second Petition and strong request for a verifiable count of signatures, KIUC simply issued a statement, defining a valid signature vs an invalid signature, plus a restatement of the count. They completely sidestepped the question about verification and that they might have a vested interest in protecting their own privacy how the determination was made on each signature.

I was the only one from the public signed in to talk, which was first on the agenda. Chairman Phil Tacbian said only members could talk and they could only talk in items on the agenda for three minutes.

I was called “to the stand.” I introduced myself as the point person on the second petition (to recall the election). The chairman said the petition was not on the agenda, and therefore COULD NOT BE DISCUSSED, so I could not talk. I thanked him and sat down, setting my precedence for respect.

(It was later explained to me that items are put on the agenda five days prior to the meeting. The agenda is posted on the KIUC web site. Since Tuesday was the sixth day after they received the petition, they CHOSE to avoid the issue by ignoring it on the agenda.)

I sat and listened as each person at the table gave their report. Consulting Counsel Proudfoot reported that he advised the Board how to proceed in response to the Second Petition.

Paraphrasing:

“A point of order, Mr. Chairman! Mr Proudfoot just brought the subject of the Second Petition to the table! I may now speak on the subject!”

“No, you may not.”

This is the second time the Chair CHOSE to be dismissive.

Steve Raposo, Vice Chair and chairman of the Members Relations Committee, did not mention the Second Petition in his report. This was the third time that a KIUC elected representative chose to ignore their commitment to being open and reaching out to the public.

During a break, Consulting Counsel Proudfoot approached Director Jan TenBruggencarte and me. He said he was intending to tell Jan something to tell me. Finding me pleasant and inviting his advice, he said that I could ask the Chair to wave the rule and allow me to speak. This is encouraging, especially coming from him. We showed each other we were reasonable men and could work with each other.

Raposo’s Members Relations report centered on defining exactly what their course of action would be for outreach with the public. After ten minutes of discussion, it was still a quandary for them what it would look like.

Knowing that Raposo probably categorized me as an unreasonable obstructionist, I approached him with a suggestion. He was a bit taken aback, but he listened. I reminded him that history has taught us the approach that works under similar circumstances: the Dolley Madison solution of giving weekly parties for opposing political sides in the neutral territory of her home. I.e. Take the budget for talk-down “dog and pony shows” and apply it to island-wide regional parties, where the public is attracted first by the food and then by the opportunity to ask questions of their elected directors and opposing views one-on-one. Raposo listened. Time will tell if he is receptive to Dolley Madison’s ingeniously iconic solution, used in the White House to this day.

Raposo is one of the Gang of Five, who controls the direction that the board votes. (About the First Petition, he reportedly remarked that some people are only obstructionists. This is the third opportunity they passed up.)

At each opportunity ANY one of the directors could have interjected an objection…and did not.

A CALL TO ACTION:

During a break, Jan B. told me that until the elections give them FIVE votes aligned with our thinking, the board will continue to vote as they have. I characterize this as an archaic corporate/plantation-style mentality. The progeny of field hands have come of age to think on their own without the aid of the dumbing down from a political machine.

The three up for re-election are Ben Sullivan, Stu Burley and Steve Raposo. Jan explained that if we vote out Stu and Steve with strong candidates, we’ll have purged the Gang of Five with our own Five Alive.

This is the light at the end of the tunnel.

Meanwhile, sitting in the back of the room for a while was Free Flow Power representatives, Jason Hines and his assistant, Dawn. The chairman invited them to report an update on their progress. THIS WAS NOT ON THE AGENDA.

Then we all took a break before they went onto Executive session. I took the opportunity to complain to Ben Sullivan that FFP should not have been given the floor, since they weren’t on the Agenda. Ben said he let it go, because they wouldn’t be taking a vote. That’s contrary to their own rules! Thus, there is NO WAY in which the situation can be “corrected” if the Board can continue to “pick and choose” what it can do accordingly.

Will KIUC consider the “possibility” of a forum approach in getting to the root of the matter discussed in a neutral venue with an opportunity for both sides of the issue to be in the planning process of determining what should be discussed and how both sides can be fairly presented?

If you are a member of KIUC and wish to express your position on any of these matters, you are encouraged to contact the KIUC Board of Directors at KIUCBOD@Hawaii.rr.com.

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.

LET IT FLOW

LET IT FLOW: The palpable disappointment of many in the wake of the defeat of Pat Gegen and Ken Stokes in the recent Kaua`i Island Utilities Coop (KIUC) Board of Directors' election serves for some as another example of voter apathy and the elections-as-popularity-contest syndrome.

But what can we expect when those who walk the walk like Gegen and Stokes have to compete with those who simply talk the talk like the three reelected incumbents who have led us nowhere when it comes to the twin goals of switching to non-carbon renewable energy and lowering electric bills?

At the risk of sounding like a broken record (what's a record grandpa?) the real issue has never really been discussed by candidates, including incumbents supported by the progressive community like Ben Sullivan, Carol Bain and Jan TenBruggencate.

It's really the core of KIUC's governance that's at issue- their very business plan... one based on the concept of "we sell you electricity."

That remnant of the for profit Citizen’s Electric enterprise model persists today even though the "shareholders" have disappeared to be replaced by members.

That means that the infamous "fiduciary responsibility" that board members are constantly reminded of, is to the members and their best interest, not the growth of the "company" in order to accommodate a self-perpetuating vision of a "selling electricity" future.

Even in terms of non-carbon renewables the talk is of borrowing money from the federal government to use for something called "PACE" bonds which will enable the construction of large scale solar farms and the selling of "shares" when what the coop should be doing is facilitating ways to accommodate self-generation in people's homes through solar, wind and other emerging self-contained technologies.

Instead the coop has taken a stance supporting caps on direct "net metering" where excess power is fed into the grid and, upon demand, back to the user at the same rate both ways in favor of exorbitant "feed in tariffs" that make the buy back of the power created by home generators far more costly than it need be.

The bugaboo of "intermittency"- as in what do you do when the sun doesn't shine and the wind doesn’t blow"- is simply a red herring with other emerging technologies in storage and distribution- technologies to which KIUC seems so risk-averse that it will never happen until the rest of the world is way ahead of us... as they already are in places in Northern Europe like Germany and Sweden.

Instead of being THE leaders in a state that touts itself as a leader in solar and wind, the most potentially progressive of utility governance structures- our coop- is in fact bringing up the rear and foot dragging on the dual goals stated above.

Instead of discouraging home generation and forcing those who want to "invest" in solar or wind join large scale ventures, our coop should be offering zero percent loans to construct windmills and solar installations in people's yards and on their homes and allow members to pay them off monthly with a charge on their bills equitable to what they pay now.

The fact is that instead of encouraging self-sufficiency the board enters into power purchase agreements at prices tagged to inflated fossil fuel costs rather than the actual cost of the alternative generation itself.

Next election, ask your candidate how they view the business model and how they would serve the goals of lowering the amount we pay while encouraging carbon-free energy. And if their answers are more of the same, remember- that that's exactly what we'll get.