If you want to know how complicated it is being an Attorney General these days, take the issue at the core of the latest petition filed by San Diego public interest attorney Michael Aguirre. He's asking for the Superior Court to order the Coastal Commission to set aside the permit it granted to Southern Caifornia Edison to bury nuclear waste right by the ocean.
Aguirre's petition alleges Edison's "reckless and knowing conduct" in installing defective generators at the San Onofre nuclear plant resulted in their quick failure and created the urgent need for radioative waste storage. Meanwhile, the Coastal Commission "abused its discretion" in granting the permit because the spot chosen threatens the the coastline. Attorney General Kamala Harris is defending in court Edison's Coastal Commission permit to dump nuclear waste. But she also claims to be investigating the utility's illegal conduct in deploying the generators in the first place. Edison is even paying Harris for its defense.
So how does an Attorney General get paid by a utillity to defend its conduct, on the one hand, then investigate that misconduct on the other?
It's a riddle of quantum proportion. And one explored in a recent San Diego Union Tribune article by utility watchdog Jeff McDonald.
The article looked at Harris's claim that she did not let the statute of limitations run out on criminal prosecution of ex-PUC President Michael Peevey for cutting an illegal deal in a Warsaw hotel room to put billions onto ratepayers for closing San Onofre. Prosecutors and legal observers acknowledged the significant legal pickle Harris is in. “It’s completely rational to wonder whether or not the investigation has become too much of a political albatross for Attorney General Harris,” Jessica Levinson, a professor at Loyola Law School in Los Angeles, told McDonald. “It’s not that she’s slamming on the brakes, but she’s not hitting the gas."
In addition to both defending Edison and investigating it, she's also doing the same for Brown and key Brown Administration players in the PUC corruption case over San Onofre. Somehow Harris is now defending the Governor's top aide Nancy McFadden in a Public Records Act lawsuit brought by Aguirre and Consumer Watchdog that also seeks access to emails between the PUC and Jerry Brown. But McFadden is a witness in the San Onofre scandal Harris is supposedly investigating.
"In this case, for the [attorney general] to investigate the communications with the [California PUC] while representing a potential witness who is a potential subject of the investigation is a conflict," former San Diego District Attorney Paul Pfingst told KPBS. Other experts agree. "If the investigation into the Public Utilities Commission involves the nuclear power plant, and that is something that's the subject of the governor's emails they are trying to keep secret, then I think there is a conflict," Georgetown University law professor Paul F. Rothstein told the Union-Tribune. "The Attorney General's Office should probably turn over one or the other of these cases to an independent counsel."
Again, how is Harris supposed to investigate Brown and his team while defending them?
The answer is that she can’t. Harris claims there is an “ethical firewall” between those lawyers under her who are investigating the PUC and those who are representing Governor Jerry Brown. Well, she can’t very well tear herself in half. That's why she refused recently to answer questions about the Coastal Commission and San Onofre. And probably why the PUC hired outside attorneys, not Harris, to defend against multiple investigations and Public Records Act requests of the Governor himself over San Onofre. Brown has authorized the PUC to spend $12 milllion and counting on outside law firms.
Harris's inaction in prosecuting Peevey is in line with her conduct on the lethal 2010 San Bruno pipeline explosion. Harris opened a criminal probe, but never brought criminal charges against the utility for not following safety rules. Instead the Feds are doing the job for her in a trial now set to go forward this summer. Could that be because Harris didn't want to buck the Governor's team?
When PG&E went judge-shopping in a rate case that the utility hoped would result in reimbursement for most of the costs for its lethal San Bruno pipeline explosion, Harris noticed. In September 2014, her office notified the PUC's ex-director that the AG was conducting an "independent investigation" of the commission in connection with "anything relating to the assigment of ALJs [Administrative Law Judges] to PUC matters." Though the PUC itself reassigned the judge as the judge-shopping scandal broke, Harris hasn't taken any action. Another statute of limitations blown to smithereens?
Harris also joined others in suing Southern California Gas, a Sempra subsidiary, over the biggest methane leak in US history at the Aliso Canyon natural gas storage facility near Porter Ranch. The suit alleges that the utility violated state health and safety laws and added to greenhouse gases by failing to control the leak and report it to proper authorities. “Southern California Gas Co. must be held accountable,” she intoned. Will it ever be on Harris's watch when Brown’s sister, Kathleen Brown, sits on Sempra’s board?
Is it time for Harris to recuse herself and appoint an independent prosecutor? Ratepayers would probably say yes.
