Lawsuit seeks records of UC legal opinion on expansion of state energy grid

A water and power district east of San Diego is suing the University of California over records related to a legal opinion that supports Gov. Jerry Brown’s plan to expand the state power grid across the western United States.

The lawsuit, filed last week in Alameda County, said university officials refused to turn over documents that three law professors relied on to produce the study. The opinion was commissioned in March by the California Independent System Operator, or CAISO, the government nonprofit that manages most of the the grid.

The complaint was brought by the Imperial Irrigation District, a municipal utility that serves about 150,000 people in Imperial County and parts of Riverside and San Diego counties.

Lawyers for the district want a judge to order the university to comply with open-records laws by making the requested documents available for public inspection. According to exhibits attached to the complaint, university officials say they have produced all of the records they are able to release. Spokeswoman Claire Doan said the institution supports the public’s right to access information, but must respect and protect employees’ right to privacy.

The legal opinion released in August helped CAISO promote the plan to expand the state grid into a regional network that would serve up to 14 states, a proposal Brown has pushed as a way to market renewable power across the West.

The irrigation district’s lawsuit says the opinion wrongly downplayed legal issues with California’s ability to follow through on landmark clean-energy policies like the cap-and-trade program and the rule calling for 50 percent of power consumed in the state to come from renewable sources by 2030.

“The records show how three university lawyers — Ethan Elkind, Dan Farber and Ann Carlson — shaped their legal opinions issued to the California Legislature and the public in such a way as to understate the risk to climate change laws if the California Independent System Operator is expanded to include 14 western states,” the complaint says.

Ann Carlson, a professor at the University of California Los Angeles, is listed as lead author of the report. Ethan Elkind of UC Berkeley and UCLA and Daniel Farber of UC Berkeley are listed as consulting professors.

The lawsuit contends that the opinion produced by the scholars was less than independent. It cites a “working outline” CAISO supplied to the researchers when they were hired in March that closely resembles the finished report.

“The arguments and language therein reappeared in substantial part in the final legal opinion,” the suit says.

According to state officials, expanding the grid to more states would save consumers up to $1.5 billion in coming years. It would also boost the use of renewable power by making solar, wind and other climate-friendly energy sources easier to distribute across state lines.

The initial expansion would merge the California system operator with PacifiCorp, a for-profit utility based in Portland, Ore. that serves 1.8 million customers in six states. The company relies heavily on fossil fuels for power, and says it hopes the grid will lessen that reliance.

The legal opinion at issue in the Imperial Irrigation District lawsuit concludes that expanding the grid to additional states would not affect climate-change programs in California.

“Adding PacifiCorp assets to CAISO will not create any new or additional risk of preemption for California’s energy and environmental policies,” it says. “Nor will it alter the constitutionality of those policies.”

The lawsuit against the University of California regents includes pages of exhibits, contending California could lose autonomy on energy policy should the merger go through.

In April, for example, the U.S. Supreme Court limited Maryland’s ability to regulate energy in its service area, given that it’s part of a multi-state grid. In May, Elkind emailed his co-authors to discuss whether they should pay more attention to the Maryland ruling and a similar case in Minnesota.

“Even a small chance that CAISO expansion could call into question California’s renewable policies would be hugely detrimental, and so I wonder if we should more explicitly address potential counter-arguments,” he wrote. “I’m not suggesting we try to game out the politics in this memo, but perhaps we could acknowledge more of the legal uncertainty.”

The final report released in August briefly addressed legal concerns about the Federal Energy Regulatory Commission.

“To the extent that state environmental laws or policies directly intrude upon or seek to establish FERC jurisdictional rates, they would be vulnerable to a preemption challenge on those grounds,” the finished opinion states.

CAISO, which is not part of the irrigation district lawsuit, defended the legal opinion’s findings and independence.

“This paper evaluates that concern and concludes that having an entity like PacifiCorp join the ISO would not increase federal, i.e. FERC, regulation over the ISO and would not impact the extent to which California may continue to regulate in these areas,” the March outline said.

CAISO spokesman Steven Greenlee said the outline was drafted by in-house lawyers and provided to the independent analysts as a courtesy so they would be aware of the agency’s position.

“To the extent the professors reached conclusions similar to the ISO, this represents an independent validation of those views,” he said.

Advocacy groups watching the proposed expansion are skeptical that federal regulators would permit California to extend its clean-energy policies beyond its borders.

“There are real risks that regional grid expansion could do substantial harm to California by increasing the potential for federal preemption of cutting-edge state policy initiatives,” said Matthew Freedman, an attorney at the Utility Reform Network in San Francisco.

Sierra Club lawyer Travis Ritchie said the benefits would be huge if the expansion is done correctly. It could get rid of dirty power producers like coal and natural gas and promote renewable energy across a dozen or more Western states, he said.

But “regionalization kind of pokes the bear,” said Ritchie, referring to federal regulators at the FERC. “If you are expanding those policies to other states, particularly states that don’t share the same climate goals, you are inviting legal challenges.”

The lawsuit was filed by San Diego attorney Maria Severson.