- Email: [email protected]
Anatomy of an EMF battle
T
H
E
Co. in a highly visible EMF suit. But the fracas has revealed how sensitive am the politics of EMF and how intense the jockeying for position by law firms seeking to protect and expand their turf in this potentially lucrative area of law practice. At issue is the EEI advisory and a Crowell & Moring memo on which it is partly based, which had a local TV commentator calling the SDG&E lawyer ‘s closing argument “bombastic and aggressive,” while allowing that the plaintiff’s counsel’s close was “scholarly and professorial.” Crowell & Moring’s Curtis Renner (speaking for Tom Watson, the firm’s lead EMF lawyer, who was on vacation) said of the firm’s changed relationship with EEI, “It’s not a falling out. We just don’t do much work with them anymore. We do most of our EMF work directly for utilities or for the Utility Health Sciences
NEWS
IN
F
Group.” (UHSG is an organization of about 80 electric utilities in the U.S., the UK, Canada and Australia.) But this is not how some sources at EEI and San Diego Gas & Electric saw the affair. DG&E was the defendant in an important EMF liability case, Zuidema v. San Diego Gas b Electric Co., decided in the utility’s favor earlier this year The root of the problem may have arisen when SDG&E hired the San Francisco firm of O’Connor, Cohn, Dillon & Barr, rather than Crowell & Moring, to represent it. SIXXE’s in-house EMF legal guru Greg Barnes, who was involved in managing the company’s defense, explained, “We retained Crowell & Moring right off the bat. But we also wanted trial counsel with lots of jury experience. Crowell & Moring agreed to represent SDG&E and help prepare our trial counsel and the experts. When we did select our
S
0
C
U
S
trial counsel, Tom Watson changed his mind and withdrew.” Sources close to the case say the aggressive Watson did not take kindly to another firm having the lead on this highly visible piece of EME defense work. However, Crowell & Moring did have an observer at the trial whose function was to fiIe reports to other of the firm’s clients, including UHSG and its members. One such re_ port included the negative characterizations of SIX&E’s lawyers that ended up in the EEI advisory report on the trial. SIX&E believed it saw the fine hand of Crowell & Moring behind the EEI advisory memo as well, since the firm represented EEI and frequently reviewed its utterances on EMF issues. The EEI advisory’s pejorative characterization of the defense handling of the case allegedly infuriated SDG&E Executive Vice President Steve Baum, who was in Wash-
Not ezmyoneat the trial ms playingthe same tune.
28
The ElectricityJournal
THE ington when he learned of it and dropped by EEI headquarters to make plain his displeasure. Baum, say some sources, then pressured EEI President Tom Kuhn and general counsel Bob Baum into dumping Crowell & Moring saying that he would pull SDG&E out of EEI if it did not. EEI’s Baum (no relation to SDG&E’s Baum) denies that such a threat was made. he amount SIX&E pays EEI in dues has little impact on the trade group, but its withdrawal would have set a dangerous example for EEI, which has struggled in recent years to find common ground for members sharply divided by issues such as amendment of the Public Utility Holding Company Act and transmission access. Like most trade groups, EEI is hemmed in by budget restrictions. Typically,in the tangled aftermath of the incident, everyone is looking for cover. Crowell & Moring flatly denies that the firm reviewed the controversial EEI advisory briefing paper and says it has no axe to grind with the San Francisco law firm. EEI sources admit that often Crowell & Moring did not review everything on EMF that EEI sent out. SIX&E’s Barnes agrees that Crowell & Moring and Watson may not have known of the EEI CEO advisory letter. Crowell & Moring’s Renner adds, “The idea that we could spin-control something through EEI to make somebody else look bad is ridiculous, because EEI wouldn’t go for it.”
T
October
2993
NEWS
IN
F
What exactly was so offensive about the EEI advisory report (and indirectly, the Crowell & Moring report)? Crowell & Moring’s report, which Em’s advisory memo drew upon, included a local TV newscaster’s comment on the style of the closing arguments that characterized plaintiff attorney Michael Withey of the Seattle firm Schroeter, Goldmark & Bender as “scholarly and professorial” and defense counsel Duncan Barr as “bombastic and ag-
gressive.” Says Renner: “[We were] just reporting on how the trial was going and what the perception out there was on how things were going. There was no intent to discredit anyone.” Renner confirms that the daily report in question was “very carefully reviewed [at the firm’s Washington office]. We want to make sure that these things are totally accurate.” Did Tom Watson review the report on the closing arguments? “I don’t know,” says Renner, “but I wouldn’t be.surprised.” SDG&E’s Barnes argues that the Crowell& Moring report and the
0
c
u
s
EEI advisory on which it relied were unfair because most of the media coverage of the trial portrayed things differently For example, he says, “The San DiegoUnion front page described how Duncan Barr ‘carefully picked apart’ the plaintiff’s case, which has a different flavor from bombastic and aggressive.“’ n aggrieved Renner minimizes the EEI fallout. “We had been doing very little work for them in the preceding year, a couple of hundred dollars a month, so this was just a tapering off that was formal&&” declares Renner. ‘We didn’t see it as a big event. We were glad to work with EEI and . . . we’d like to work with them again. But we were busy on EMF before we were counseling EEI and we remain very busy on EMF. If this is the rap, then it is a bum rap.” SDG&E’s Barnes responds: “I will let you decide if this was a bum rap. [CrowelI & Moring’s] duties were not those of a journalist. Their duties were those of lawyers with an attorney/client relationship with the EEI member companies and with San Diego Gas & Electric. . . . They also owed a duty to SDG&E directly because they did work for us on this particular case, although they withdrew early on. “What you’re writing about here,” says Barnes, attempting to summarize the tangled matter, “is a parable of the marketing of a law firm.” n -John McCaughq
A
29
T
H
E
the West Virginia commission told APCo to withdraw its application and resubmit it only when it appeared that mapping routes and other information would be available from the U.S. Forest Service and National Park Service. vice president Charles Simmons says the Jefferson National Forest is the lead agency on the environmental impact statement for the WyomingCloverdale line. A draft environmental impact statement is not due until Sept. 1995, with the final EIS due in Feb. 1995. Unlike virginia Power, APCo says its line which does not need the related Viiginia Power line to be beneficial - will go forward, if approved, whatever happens to the Virginia Power’s LadysmithJoshua Falls line. APCo’s Don Johnson says his company has not upgraded its transmission system in the area since 1972, while loads have grown 80% since then. By the end of the decade the company projects its area loads will have grown another 20%. The 765-kV Wyoming-Cloverdale line is so badly needed, Johnson says, that APCo is warning of brownouts and blackouts if it is not constructed. “The [Ladysmith-Joshua Falls] project is extremely important to Viiginia Power,” says Rick Thatcher, director of generation and interconnection planning for Virginia Power. “It will give us 2000 MW of transfer capacity. But it’s also important to the entire system in this area. For Virginia Power, it will solve reliability
PCo A
October1993
NEWS
IN
F
problems and allow us to avoid building a new 300-MW combustion turbine plant. That alone will save us more than our share of the cost of the line. We also expect that there will be 500 MW of capacity reserved for independent power producers in the area,” he said. Virginia Power looks to the project to relieve a problem it has had importing power from nonutility projects located in the coal fields to the west of it. Thatcher
said the combined 500-kV/765-kV project will improve reliability for both his utility and APCo. It would also reduce flows on existing EHV lines, he said. with respect to the EMF issue, Thatcher added that Samuel Milham, who served as opponents’ witness in the VSCC hearing, agreed on cross examination that it would be beneficial from an EMF standpoint if currents on existing lines were reduced, as the new project would do. -Robert 0. Marritz
0
c
u
s
‘No Respect’ Renewable FERC Revamps Its Procedures for Hydra
W
hen the Federal Energy Regulatory Commission convened its unprecedented roundtable on hydm licensing last June, the agency and its staff came in for a thorough bashing. It was clear from that meeting and from discussion with participants afterward that there is unanimity that FERC’s hydro licensing system is broken: narmw, rigid, upside down, overly bureaucratic, mired in conflict, frequently focused on the wrong issues, and seemingly designed to deal the public out. At that June meeting, it was also clear that the five FERC commissioners were disturbed by what they heard. At the time, new FERC Chair Betsy Moler told the assembled hydro mavens that she hoped to “open up our process as broadly as we can to find out if there are problems in how we do our job.” In mid-September Moler and the other FERC commissioners moved to fix the system. The commission: l Published a notice of inquiry on the thorny issue of decornmissioning unwanted hydro projects; l Published a notice of a proposed policy statement on how the commission might use its reopener authority to deal with cumulative impacts of hydro; and
15
H
E
Co. in a highly visible EMF suit. But the fracas has revealed how sensitive am the politics of EMF and how intense the jockeying for position by law firms seeking to protect and expand their turf in this potentially lucrative area of law practice. At issue is the EEI advisory and a Crowell & Moring memo on which it is partly based, which had a local TV commentator calling the SDG&E lawyer ‘s closing argument “bombastic and aggressive,” while allowing that the plaintiff’s counsel’s close was “scholarly and professorial.” Crowell & Moring’s Curtis Renner (speaking for Tom Watson, the firm’s lead EMF lawyer, who was on vacation) said of the firm’s changed relationship with EEI, “It’s not a falling out. We just don’t do much work with them anymore. We do most of our EMF work directly for utilities or for the Utility Health Sciences
NEWS
IN
F
Group.” (UHSG is an organization of about 80 electric utilities in the U.S., the UK, Canada and Australia.) But this is not how some sources at EEI and San Diego Gas & Electric saw the affair. DG&E was the defendant in an important EMF liability case, Zuidema v. San Diego Gas b Electric Co., decided in the utility’s favor earlier this year The root of the problem may have arisen when SDG&E hired the San Francisco firm of O’Connor, Cohn, Dillon & Barr, rather than Crowell & Moring, to represent it. SIXXE’s in-house EMF legal guru Greg Barnes, who was involved in managing the company’s defense, explained, “We retained Crowell & Moring right off the bat. But we also wanted trial counsel with lots of jury experience. Crowell & Moring agreed to represent SDG&E and help prepare our trial counsel and the experts. When we did select our
S
0
C
U
S
trial counsel, Tom Watson changed his mind and withdrew.” Sources close to the case say the aggressive Watson did not take kindly to another firm having the lead on this highly visible piece of EME defense work. However, Crowell & Moring did have an observer at the trial whose function was to fiIe reports to other of the firm’s clients, including UHSG and its members. One such re_ port included the negative characterizations of SIX&E’s lawyers that ended up in the EEI advisory report on the trial. SIX&E believed it saw the fine hand of Crowell & Moring behind the EEI advisory memo as well, since the firm represented EEI and frequently reviewed its utterances on EMF issues. The EEI advisory’s pejorative characterization of the defense handling of the case allegedly infuriated SDG&E Executive Vice President Steve Baum, who was in Wash-
Not ezmyoneat the trial ms playingthe same tune.
28
The ElectricityJournal
THE ington when he learned of it and dropped by EEI headquarters to make plain his displeasure. Baum, say some sources, then pressured EEI President Tom Kuhn and general counsel Bob Baum into dumping Crowell & Moring saying that he would pull SDG&E out of EEI if it did not. EEI’s Baum (no relation to SDG&E’s Baum) denies that such a threat was made. he amount SIX&E pays EEI in dues has little impact on the trade group, but its withdrawal would have set a dangerous example for EEI, which has struggled in recent years to find common ground for members sharply divided by issues such as amendment of the Public Utility Holding Company Act and transmission access. Like most trade groups, EEI is hemmed in by budget restrictions. Typically,in the tangled aftermath of the incident, everyone is looking for cover. Crowell & Moring flatly denies that the firm reviewed the controversial EEI advisory briefing paper and says it has no axe to grind with the San Francisco law firm. EEI sources admit that often Crowell & Moring did not review everything on EMF that EEI sent out. SIX&E’s Barnes agrees that Crowell & Moring and Watson may not have known of the EEI CEO advisory letter. Crowell & Moring’s Renner adds, “The idea that we could spin-control something through EEI to make somebody else look bad is ridiculous, because EEI wouldn’t go for it.”
T
October
2993
NEWS
IN
F
What exactly was so offensive about the EEI advisory report (and indirectly, the Crowell & Moring report)? Crowell & Moring’s report, which Em’s advisory memo drew upon, included a local TV newscaster’s comment on the style of the closing arguments that characterized plaintiff attorney Michael Withey of the Seattle firm Schroeter, Goldmark & Bender as “scholarly and professorial” and defense counsel Duncan Barr as “bombastic and ag-
gressive.” Says Renner: “[We were] just reporting on how the trial was going and what the perception out there was on how things were going. There was no intent to discredit anyone.” Renner confirms that the daily report in question was “very carefully reviewed [at the firm’s Washington office]. We want to make sure that these things are totally accurate.” Did Tom Watson review the report on the closing arguments? “I don’t know,” says Renner, “but I wouldn’t be.surprised.” SDG&E’s Barnes argues that the Crowell& Moring report and the
0
c
u
s
EEI advisory on which it relied were unfair because most of the media coverage of the trial portrayed things differently For example, he says, “The San DiegoUnion front page described how Duncan Barr ‘carefully picked apart’ the plaintiff’s case, which has a different flavor from bombastic and aggressive.“’ n aggrieved Renner minimizes the EEI fallout. “We had been doing very little work for them in the preceding year, a couple of hundred dollars a month, so this was just a tapering off that was formal&&” declares Renner. ‘We didn’t see it as a big event. We were glad to work with EEI and . . . we’d like to work with them again. But we were busy on EMF before we were counseling EEI and we remain very busy on EMF. If this is the rap, then it is a bum rap.” SDG&E’s Barnes responds: “I will let you decide if this was a bum rap. [CrowelI & Moring’s] duties were not those of a journalist. Their duties were those of lawyers with an attorney/client relationship with the EEI member companies and with San Diego Gas & Electric. . . . They also owed a duty to SDG&E directly because they did work for us on this particular case, although they withdrew early on. “What you’re writing about here,” says Barnes, attempting to summarize the tangled matter, “is a parable of the marketing of a law firm.” n -John McCaughq
A
29
T
H
E
the West Virginia commission told APCo to withdraw its application and resubmit it only when it appeared that mapping routes and other information would be available from the U.S. Forest Service and National Park Service. vice president Charles Simmons says the Jefferson National Forest is the lead agency on the environmental impact statement for the WyomingCloverdale line. A draft environmental impact statement is not due until Sept. 1995, with the final EIS due in Feb. 1995. Unlike virginia Power, APCo says its line which does not need the related Viiginia Power line to be beneficial - will go forward, if approved, whatever happens to the Virginia Power’s LadysmithJoshua Falls line. APCo’s Don Johnson says his company has not upgraded its transmission system in the area since 1972, while loads have grown 80% since then. By the end of the decade the company projects its area loads will have grown another 20%. The 765-kV Wyoming-Cloverdale line is so badly needed, Johnson says, that APCo is warning of brownouts and blackouts if it is not constructed. “The [Ladysmith-Joshua Falls] project is extremely important to Viiginia Power,” says Rick Thatcher, director of generation and interconnection planning for Virginia Power. “It will give us 2000 MW of transfer capacity. But it’s also important to the entire system in this area. For Virginia Power, it will solve reliability
PCo A
October1993
NEWS
IN
F
problems and allow us to avoid building a new 300-MW combustion turbine plant. That alone will save us more than our share of the cost of the line. We also expect that there will be 500 MW of capacity reserved for independent power producers in the area,” he said. Virginia Power looks to the project to relieve a problem it has had importing power from nonutility projects located in the coal fields to the west of it. Thatcher
said the combined 500-kV/765-kV project will improve reliability for both his utility and APCo. It would also reduce flows on existing EHV lines, he said. with respect to the EMF issue, Thatcher added that Samuel Milham, who served as opponents’ witness in the VSCC hearing, agreed on cross examination that it would be beneficial from an EMF standpoint if currents on existing lines were reduced, as the new project would do. -Robert 0. Marritz
0
c
u
s
‘No Respect’ Renewable FERC Revamps Its Procedures for Hydra
W
hen the Federal Energy Regulatory Commission convened its unprecedented roundtable on hydm licensing last June, the agency and its staff came in for a thorough bashing. It was clear from that meeting and from discussion with participants afterward that there is unanimity that FERC’s hydro licensing system is broken: narmw, rigid, upside down, overly bureaucratic, mired in conflict, frequently focused on the wrong issues, and seemingly designed to deal the public out. At that June meeting, it was also clear that the five FERC commissioners were disturbed by what they heard. At the time, new FERC Chair Betsy Moler told the assembled hydro mavens that she hoped to “open up our process as broadly as we can to find out if there are problems in how we do our job.” In mid-September Moler and the other FERC commissioners moved to fix the system. The commission: l Published a notice of inquiry on the thorny issue of decornmissioning unwanted hydro projects; l Published a notice of a proposed policy statement on how the commission might use its reopener authority to deal with cumulative impacts of hydro; and
15