Checks and Balances Project Launches Investigation of Nevada PUC Commissioner David Noble

Checks and Balances Project Investigates Nevada Commissioner David NobleMy colleague Evlondo Cooper and I just returned from a six-day fact-finding visit to Nevada, where we met with reporters and editors, civic leaders, and others. Our trip to Carson City, Reno, and Las Vegas was designed to give us a better understanding of the dynamic between the Nevada Public Utilities Commission (PUC) and the state’s largest utility, NV Energy. It is part of our ongoing Captured Regulators Initiative.

Regulatory Capture 

The concept of “regulatory capture” was first described by Noble Prize-winning economist George J. Stigler in 1971. Although the problem is probably older than the Romans, Stigler described it as a situation in which a public agency, created to regulate a powerful industry for the benefit and protection of the public, instead is captured by the very industry it is supposed to oversee.

In Arizona, the Captured Regulators Initiative has uncovered powerful, circumstantial evidence that former Chairman, now Commissioner, Bob Stump and others on the Arizona Corporation Commission are captured by that state’s powerful utility Arizona Public Service (APS) – essentially acting as APS consultants, rather than impartial overseers of large parts of the state’s economy.

First FOIA Request

Checks and Balances Project Investigates Nevada Commissioner David Noble

David Noble

Now we are also turning our attention to Nevada, where Public Utility Commissioner David Noble was described by many people we talked to last week as by far the most “utility friendly” of the three commissioners. One source told us that Noble had been talking to audiences outside of the state about the threat to utilities by rooftop solar, something we will seek to confirm in the months ahead.

On Wednesday, August 19, we attended a PUC meeting in Carson City that Commissioner Noble presided over. Although the meeting was largely procedural, we were surprised at how Noble lashed out at a lawyer from the pro-solar group TASC for being workmanlike during official meetings but antagonistic in public. He struck us as being remarkably thin skinned for a public official whose salary is paid by taxpayers.

We begin our effort to determine if Commissioner Noble is a captured regulator with a request to obtain or review the record of his contacts with NV Energy and the utility trade association, the Edison Electric Institute. We have embedded it in this post in case you want to read it. Due to the importance of this issue to Nevadans at this phase of the state’s high-stakes energy debate, we believe these are critical questions to ask.

 

Scott Peterson is executive director of the Checks and Balances Project, a national watchdog blog that seeks to hold government officials, lobbyists and corporate management accountable to the public. Funding for C&BP comes from pro-clean energy philanthropies and donors.

 

Nevada Open Records Act Request: Commissioner David Noble

 

Evlondo Cooper

Checks and Balances Project

1820 N. Fort Myer Drive, Suite 510

Arlington, VA 22209

 

VIA EMAIL AND HAND-DELIVERY

 

August 25, 2015

 

Peter Kostes

Public Information Officer

State of Nevada Public Utilities Commission

1150 E. William Street

Carson City, NV 89701

 

Dear Mr. Kostes:

I am a Senior Fellow with the Checks and Balances Project (http://checksandbalancesproject.org/), a government and industry watchdog blog. Pursuant to Nevada’s Public Records Act (Nevada Revised Statutes § 239.010 et. seq., “NPRA”), I am writing to request records of all communications between Commissioner David Noble and any representatives of NV Energy or the Edison Electric Institute (EEI), including but not limited to communications regarding solar energy or net metering in Nevada.

Time Period

This request seeks records created and/or received during the following time period:

  • February 17, 2012, through today.

Records Sought

As indicated above, I am requesting all records evidencing or regarding communications or meetings between Commissioner David Noble and any representatives of NV Energy and/or EEI. This request should be interpreted broadly and includes but is not limited to:

  • Text messages in which Commissioner Noble might have conducted public business with or otherwise communicated with any NV Energy and/or EEI representative. Please produce messages that pertain to public business, regardless of what device the message was sent or received on.
  • Emails between Mr. Noble and any NV Energy and/or EEI representative that discuss or mention solar energy or net metering, irrespective of the device or email address Mr. Noble or the NV Energy and/or EEI representative were using.
  • Phone logs for the above-referenced dates.
  • All meetings calendars for the above-referenced dates, electronic or paper, irrespective of device.
  • Any communications made by other electronic means (such as, without limitation, electronic chat and instant messaging), or other means of contemporaneous interactive communication, that Commissioner Noble might have used to conduct public business with a NV Energy and/or EEI representative.

For the purposes of this request, please interpret “representative” broadly to include NV Energy and/or EEI employees, agents, consultants, lobbyists (paid or unpaid), attorneys, or anybody else acting on behalf of either NV Energy and/or EEI.

Please also provide copies of all responsive records, regardless of how created or stored or what device, phone number, or email address they were created, sent or received from, if they pertain to the topics above. As the Nevada Supreme Court has explained, “public record” must be interpreted broadly to further the important purposes of the NPRA:

The NPRA provides that all public books and public records of governmental entities must remain open to the public, unless “otherwise declared by law to be confidential.” NRS 239.010(1). The Legislature has declared that the purpose of the NPRA is to further the democratic ideal of an accountable government by ensuring that public records are broadly accessible. NRS 239.001(1). Thus, the provisions of the NPRA are designed to promote government transparency and accountability.

Reno Newspapers, Inc. v. Gibbons, 127 Nev. Adv. Op. 79, 266 P.3d 623, 626 (2011).

Production Instructions

For electronic records, please provide the records in their original electronic form attached to an email or downloaded to an electronic medium. I can provide the electronic medium and arrange to pick up the records. For hard copy records, please attach copies to an email as a .PDF or I can arrange to pick up the hard copies. I am seeking information as it becomes available; please do not wait to fill the entire request, but send each part or contact me as it becomes available.

If you intend to charge any fees for obtaining copies of these records, please contact me immediately (no later than five (5) days from today) if the cost will exceed $50. I can also arrange to have the records inspected in person. As you know, no fees can be charged for a request to inspect records (Nev. Rev. Stat. § 239.010 mandates that “all public books and public records of a government entity must be open at all times during office hours to inspection by any person…”).

In any case, I am requesting a waiver of all fees because the disclosure of the requested information is in the public interest. This will contribute significantly to the public’s understanding of the Nevada Public Utilities Commission. The records may be written about and published to the Internet.

If access to the records I am requesting will take longer than a reasonable amount of time, please contact me with information about when I might expect copies or be able to inspect the requested records.

If you deny access to any of the records requested, please explain your basis for doing so in writing within five (5) days, citing the specific statutory provision or other legal authority you rely upon to deny access. NRS § 239.011(1)(d).

Please err on the side of fully providing records. Nevada’s Public Records Act requires that its terms be construed liberally and mandates that any exception be construed narrowly. NRS § 239.001(2), (3).

Please also redact or separate out the information you contend is confidential rather than withholding records in their entirety, as required by Nev. Rev. Stat. § 239.010(3). Again, please cite the statutory provision you rely upon to redact or withhold part of a record and keep in mind that you have the burden of showing that the record is confidential. NRS § 239.0113.

Please provide the records or a response within five (5) business days pursuant to Nev. Rev. Stat. §239.0107. Again, please email your response to evlondo@checksandbalancesproject.org rather than U.S. Mail so I can review as quickly as possible.

Thank you in advance for your cooperation with my request. Please contact me with any questions whatsoever.

Regards,

 

Evlondo Cooper

Senior Fellow

Checks and Balances Project

Nevada Minority Floor Leader’s Bill Appears to Borrow Content from Arizona’s Pinnacle West Legislation

Nevada Minority Floor Leader’s Bill Appears to Borrow Content from Arizona’s Pinnacle West LegislationAs the Nevada legislative session rolls toward its close on June 1, questions are being raised about the origins of AB330, a bill sponsored by Minority Floor Leader Marilyn Kirkpatrick (D-1). Though currently tabled, the key language of the legislation significantly overlaps a bill passed by the Arizona legislature that, according to our sources, was authored by Pinnacle West, the holding company of the utility Arizona Public Service.

Like the similar Pinnacle West bill that was passed on March 30, 2015, Kirkpatrick’s bill, that was introduced on March 16, would require would impose extensive equipment registration requirements on the rooftop solar industry, something that many say would give an advantage to in-state utilities that are fighting the popular, fast-growing solar industry in Nevada.

While the Assemblywoman is, of course, free to author any bill she chooses, her original bill contained much of the same content as the Arizona legislation. For example:

Nevada Minority Floor Leader’s Bill Appears to Borrow Content from Arizona’s Pinnacle West Legislation

 

The Pinnacle West bill has the same provisions:

Nevada Minority Floor Leader’s Bill Appears to Borrow Content from Arizona’s Pinnacle West Legislation

This raises several questions. First and foremost: Why is this powerful Nevada Democrat pushing legislation that seems to have its origins with an out-of-state utility’s lobbying staff?

Questions for Kirkpatrick

We emailed and called Assemblywoman Kirkpatrick’s office with the following questions, on which we are awaiting comment.

  • What public problem is this bill intended to address?
  • What evidence exists of the problem?
  • How do you explain the overlap in language between your bill and the Pinnacle West bill?
  • Who first approached you about sponsoring this bill?
  • Who provided the original draft?
  • Which lobbyists working in favor of your bill have you worked with? Who or what companies were they representing?
  • Do any of these lobbyists represent companies or interests that have provided contributions, gifts or perks of any sort to you or your staff?

Rooftop solar is booming in Arizona and Nevada, yet curious moves are underway in those states and others to inhibit a technology that the overwhelming majority of Americans say they want. Perhaps we don’t understand the Assemblywoman’s motivation. We look forward to hearing from her.

 

Scott Peterson is executive director of the Checks and Balances Project, a national watchdog that seeks to hold government officials, lobbyists and corporate management accountable to the public. Funding for C&BP comes from pro-clean energy philanthropies and donors.