Legislators Set to Sue Federal Energy Agency

Legislative Democrats today will sue federal energy regulators, charging that their inaction threatens elderly people in nursing homes, children in day care centers, law enforcement and its ability to fight crime, and the state’s drinking water supplies.

Rather than focus on record wholesale energy costs, the lawsuit takes a new tack, homing in on the threat to health and safety posed by California’s energy crisis and the blackouts likely this summer.

A draft of the suit seeks to force the Federal Energy Regulatory Commission to set “just and reasonable” wholesale power rates as a way of ending the crisis before blackouts occur. The action is being filed by veteran trial attorney Joe Cotchett on behalf of Senate President Pro Tem John Burton (D-San Francisco), Assembly Speaker Bob Hertzberg (D-Sherman Oaks), and the city of Oakland.

“A crisis of unprecedented dimensions is already taking shape in California,” the draft says. “The public health, safety and welfare of the state’s 34 million residents is in jeopardy due to the tragic consequences of rolling blackouts and punitive prices.”

Suit Says Blackouts Pose Threats

Until now, most California officials, including Gov. Gray Davis, have been urging that the regulatory commission cap wholesale power prices as a way of limiting costs to the state, which has spent more than $6 billion buying electricity since January.

In the lawsuit, Cotchett will be arguing that while higher bills will stretch the budgets of people on fixed incomes, frail elderly people “are left to wonder if their oxygen tanks, drip IVs, dialysis machines and electricity-powered therapeutic beds will respond when they are needed.”

“Rolling blackouts represent more than just an annoyance for the men, women and children with disabilities,” the suit says. “They represent an imminent threat to life, health and independence.”

Cotchett said the suit will be filed in the U.S. 9th Circuit Court of Appeals in San Francisco, bypassing the federal trial court. Cotchett said the circuit court has direct jurisdiction over FERC.

Joining Cotchett will be Clark Kelso, a professor at McGeorge Law School in Sacramento who briefly was insurance commissioner last year after Chuck Quackenbush resigned. Kelso said he initially was skeptical that lawmakers had legal standing to sue. But after Cotchett spoke with him, Kelso said he became convinced the suit had merit.

“Let’s face it,” said Kelso, a Republican, “this is the single most important issue that the state faces for the next six months.”

Watching the Water Supply

The suit cites warnings from governmental agencies about the implications of blackouts, including one the state Department of Health Services issued earlier this month to public water agencies statewide. The warning contains a sample notice that local water authorities should give to consumers.

“If the water looks cloudy or dirty,” the warning says, “you should not drink it.” The warning suggests that if people are concerned about water quality, they can boil it or add “eight drops of household bleach to one gallon of water, and let it sit for 30 minutes.”

Most water agencies have back-up generators. But the suit says that “if an agency’s water treatment facilities are hit by a power outage, a two-hour blackout can result in two-day interruptions in providing safe drinking water because of time needed to bring equipment back online and flush potentially contaminated water from the system.”