Preview
1 Maria C. Severson, Esq., SBN 173967
AGUIRRE & SEVERSON, LLP
2 501 West Broadway, Suite 1050
San Diego, CA 92101 ELECTRONICALLY
3 Telephone: (619) 876-5364
Facsimile: (619) 876-5368
F I L E D
Superior Court of California,
4 County of San Francisco
Attorney for Petitioner and Plaintiff 12/10/2019
5 Clerk of the Court
BY: KALENE APOLONIO
Deputy Clerk
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
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11 MICHAEL J. AGUIRRE, an individual, Case No. CGC-19-580685
12 Petitioner and Plaintiff, FIRST AMENDED VERIFIED PETITION
FOR WRIT OF MANDAMUS
13 v. (CAL. CODE CIV. PROC. § 1085) AND
14 CALIFORNIA GOVERNMENT COMPLAINT FOR DECLARATORY
OPERATIONS AGENCY; and DOES 1 to RELIEF (CAL. CODE CIV. PROC. § 1060)
15 50, inclusive, UNDER CALIFORNIA STATE
CONSTITUTION ART. I, SEC. 3 AND
16 Respondents and Defendants. CALIFORNIA'S PUBLIC RECORD
LAWS (CAL. GOV. CODE § 6250)
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FIRST AMENDED VERIFIED PETITION AND COMPLAINT
1 TABLE OF CONTENTS
2 INTRODUCTION .................................................................................................................4
3 PARTIES AND KEY PLAYERS ...............................................................................................7
4 JURISDICTION AND VENUE .................................................................................................9
5 CONTEXT IN WHICH CLAIMS ARISE ..................................................................................9
6 I. The Records Requested Relate to Pacific Gas & Electric
Company’s Adverse Domination of California’s Most
7 Powerful Public Agency, the Legislature,
and Governor Newsom .....................................................................................13
8
A. PG&E Has Long Achieved Adverse
9 Domination of its Regulator ..................................................................13
10 B. PG&E Has Adversely Dominated Both the
Governor and the Legislature ................................................................16
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II. The Records Requested Relate to PG&E’s Wielding
12 of its Influence over State Government to
Ensure Passage of AB 1054 ..............................................................................20
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III. Cabinet Secretary Matosantos, the Architect of AB 1054,
14 Made Numerous Misrepresentations to the Legislature
to Secure Passage of the Bill .............................................................................24
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A. Matosantos Misrepresented the Ultimate
16 Beneficiaries of AB 1054’s Economic and
Legal Restructuring of California Utility Regulation ...........................27
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B. Matosantos Falsely Represented that AB 1054
18 Would Ensure PG&E’s Compliance with Safety
Regulations with Which PG&E Was Already
19 Required to Comply ..............................................................................29
20 C. Matosantos Falsely Insinuated the IOUs’
Participation in AB 1054’s Wildfire Fund Meant
21 the IOUs Had Received Safety Certifications .......................................32
22 D. Matosantos Falsely Insinuated the Issuance of
Safety Certifications in AB 1054 Meant the IOUs
23 Had Been Certified by the CPUC As Being Safe Actors......................36
24 IV. The Governor has Admitted GovOps’ Former
Executive Officer, Marybel Batjer, Played a Critical Role
25 in the Formulation of AB 1054 Alongside
Cabinet Secretary Matosantos ...........................................................................38
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PETITIONER’S PUBLIC RECORDS REQUESTS
27 AND RESPONDENTS’ DENIALS .........................................................................................40
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FIRST AMENDED VERIFIED PETITION AND COMPLAINT
1 I. Respondent GovOps Denied Access to Then-Secretary
Batjer’s Public Records Through Blanket
2 Assertions of Exemptions and Unresponsive Productions................................41
3 II. Similar Records Denials by Governor Newsom
and Cabinet Secretary Matosantos is Part and
4 Parcel of a Pattern to Stonewall Petitioner .......................................................44
5 FIRST CAUSE OF ACTION ...................................................................................................46
Writ of Mandate (CCP § 1085), Prohibition, or Other Extraordinary Relief
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SECOND CAUSE OF ACTION ..............................................................................................48
7 Declaratory Relief (Cal. Code Civ. Proc. § 1060)
8 PRAYER FOR RELIEF............................................................................................................48
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FIRST AMENDED VERIFIED PETITION AND COMPLAINT
1 INTRODUCTION
2 By this verified petition and complaint, Petitioner and Plaintiff alleges:
3 1. This complaint seeks an order of the court requiring Respondents to produce
4 records pursuant to their ministerial duty under Article I, Section 3 of the California Constitution
5 and the California Public Records Act.
6 2. The records sought relate to a matter of great public interest: Pacific Gas &
7 Electric Company’s (PG&E) scheme to ensure its survival by leaning on its carefully cultivated
8 relationship with Governor Gavin Newsom’s (Governor) as his single most powerful and
9 generous campaign contributor. To ensure the Governor could induce action on PG&E’s behalf,
10 PG&E also made millions of dollars of campaign contributions to legislators, political action
11 committees, and state-level political parties during the 2018 election cycle. PG&E then spent
12 tens of millions more for an army of lobbyists to ensure its campaign contribution beneficiaries
13 stayed on-message.1
14 3. The Governor has indeed taken actions since January 2019 to secure PG&E’s
15 status as the nation’s single largest and most wealthy investor-owned electric utility company,
16 despite PG&E causing catastrophic wildfires which collectively caused over $30 billion in
17 damages. PG&E and its associated interests met with the Governor’s cabinet members and hired
18 team of experts at least fourteen (14) times between his inauguration in January 2019 and July
19 2019. Newsom consummated PG&E’s scheme by using his influence and power to secure
20 passage of a series of laws which cumulatively have the effect of offloading billions of future
21 electric utility shareholder wildfire liabilities onto utility customers that would not otherwise have
22 been paid by utility customers.
23 4. The vehicle for PG&E’s scheme was Assembly Bill (AB 1054), signed into law on
24 July 12, 2019. Shortly before AB 1054’s passage, an investigative reporter from Sacramento
25 local news station ABC 10 released a three-part video series in which he revealed that Governor
26 Newsom accepted $208,400 in 2018 gubernatorial campaign contributions from California’s
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ABC 10, “How California fires are going to cost us all: FIRE – POWER – MONEY, Ep. 3 of
28 3,” dated July 10, 2019, timestamp 14:15 – 14:22.
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FIRST AMENDED VERIFIED PETITION AND COMPLAINT
1 largest investor-owned electric utility (IOU), PG&E, alongside a $500,000 donation to the
2 California Democratic Party.
3 5. A Washington Post investigative team thereafter revealed the $208,400
4 contribution was but one of many such high-dollar-amount contributions made towards the
5 political ambitions of both the Governor and his close family members.2 Over the course of two
6 decades, PG&E gave, and the Governor and his family members accepted, $693,000 to fund their
7 various projects, including the Governor’s mayoral campaigns. In other words, California’s
8 Governor was politically indentured to the entity who stood to gain the most from the financial
9 and legal protections bestowed upon IOUs by AB 1054.
10 6. The records request at issue is pending at the agency in possession of records
11 created by one of the Governor’s highest-level appointees tasked with carrying out the PG&E
12 continuation scheme: The California Government Operations Agency (GovOps). The Governor’s
13 appointee who created the records sought was the executive officer of GovOps at the time the
14 records were created. Since then, she has become the President of the California Public Utilities
15 Commission (CPUC): Marybel Batjer (Batjer).
16 7. Gov. Newsom has admitted CPUC President Batjer played a major role in the
17 drafting of AB 1054. The Governor’s office identified Batjer, then-Secretary of GovOps, as the
18 first member of the Governor’s Wildfire Strike Force, a handpicked group of subject matter
19 experts tasked with addressing the “most vexing public policy challenge [of] the equitable
20 distribution of wildfire liability.”3
21 8. Ms. Batjer served on the Wildfire Strike Force with Cabinet Secretary Ana
22 Matosantos, who has been identified by AB 1054’s authors as the principal architect behind the
23 bill’s Wildfire Fund mechanism by which utility customers will be made to subsidize utility-
24 caused wildfire liabilities in perpetuity. Indeed, Matosantos spoke at every such legislative
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25 Douglas MacMillan and Neena Satija, “PG&E helped fund the careers of Calif. governor and
his wife. Now he accuses the utility of ‘corporate greed.’” The Washington Post (Nov. 11, 2019),
26 available at https://www.washingtonpost.com/business/2019/11/11/pge-helped-fund-careers-calif-
governor-his-wife-now-he-accuses-utility-corporate-greed/
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27 Governor’s Wildfire Strike Force, “Wildfires and Climate Change: California’s Energy Future,”
p. 2-3, 10 (“…the most vexing public policy challenge [of] the equitable distribution of wildfire
28 liability.”).
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FIRST AMENDED VERIFIED PETITION AND COMPLAINT
1 hearing as the Governor’s Office’s principal representative. The Governor has even designated
2 Matosantos as his “energy czar” at the helm of an “energy strike team” which includes other top-
3 ranking cabinet members.4
4 9. On July 12, 2019, Governor Newson signed AB 1054 into law. The same day, he
5 announced his appointment of Batjer as President of the CPUC. Batjer is intimately involved
6 with the PG&E continuation scheme led by both Governor Newsom and Cabinet Secretary
7 Matosantos.
8 10. On July 18, 2019, Petitioner filed a lawsuit on behalf of two Pacific Gas & Electric
9 (PG&E) customers to invalidate AB 1054 as violative of their constitutional rights under the Due
10 Process and Takings Clauses because the law was enacted to fulfill the predominantly private,
11 rather than public, purpose of insulating investor-owned utilities from the financial consequences
12 of their catastrophic wildfire-causing safety violations.
13 11. In furtherance of the same, Petitioner has sent Public Records Act (PRA) requests
14 to various government agencies involved in the drafting of, or named in, AB 1054. Among the
15 PRA requests Petitioner sent to various government agencies regarding AB 1054 were requests to
16 Governor Newsom, Cabinet Secretary Matosantos, and the custodian of Marybel Batjer’s records
17 at the time of AB 1054’s drafting: GovOps.
18 12. The public has a profound interest in obtaining public records of communications
19 regarding how AB 1054 became law in 2019. PG&E faced tens of billions of dollars in fire
20 victim claims in 2019, in amounts above and beyond PG&E’s fire insurance. PG&E filed for
21 reorganization in bankruptcy court in San Francisco. Meanwhile, PG&E leveraged its personal
22 relationship with the Governor along with several other state officials to put forward a PG&E
23 financial bailout plan.
24 13. This plan worked its way through the Governor’s Wildfire Strike Force and a
25 report authored by a Governor-controlled wildfire law commission that repeated PG&E’s false
26 narrative that it faced a wildfire cost recovery standard administered by the CPUC that was
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27 Sophia Bollag and Bryan Anderson, “Newsom names ‘energy czar’ amid California blackouts,
suggests state could take over PG&E,” Sacramento Bee (November 1, 2019), available at
28 https://www.sacbee.com/news/politics-government/capitol-alert/article236917773.html
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FIRST AMENDED VERIFIED PETITION AND COMPLAINT
1 protracted and uncertain. PG&E also proposed that it be protected by a wildfire claims fund that
2 would pay off PG&E’s future fire victims using utility customer funds. The plan also called for
3 PG&E to pay previous fire victims with $6.75 billion in PG&E stock.
4 14. The value of stock to be given to fire victims under PG&E’s plan depended on
5 PG&E’s ability to pay for fires it caused in 2019 and in later years. Under the plan, utility
6 customers, without a due process hearing were to be forced to pre-fund PG&E’s fire claim
7 liabilities for fires that occurred in 2019 and later. This case seeks the records of communications
8 that will allow utility customers to understand the key details of this scheme.
9 15. As alleged extensively below, Respondent has both resorted to blanket assertions
10 of exemptions and privileges to avoid disclosure and has misconstrued Petitioner’s requests in
11 bad faith to create pretexts upon which to delay their disclosure of records. Neither tactic is in
12 keeping with the PRA’s policy of broad public access to records concerning the public’s business.
13 16. Petitioner thereby petitions this Court to exercise its power under Art. I, Sec. 3 of
14 the California Constitution and the California PRA to conduct in camera review of the sought-
15 after records and require disclosures be made to vindicate Petitioner’s rights. The public deserves
16 to know why and in what manner the Governor, his Cabinet and staff, his Cabinet-level agencies,
17 and his appointees took part in PG&E’s scheme. More importantly, the public deserves to know
18 whether it can place its trust in the Governor’s other efforts to address the utility-caused
19 catastrophic wildfire problem. The public is entitled to know whose interests Governor
20 Newsom’s administration has at heart with AB 1054 and other measures the Governor claims is
21 for wildfire safety and energy utility reform.
22 PARTIES AND KEY PLAYERS
23 17. Petitioner Michael J. Aguirre is an individual who requested the public records
24 sought in this proceeding under Art. I, Sec. 3 of the California State Constitution and the
25 California Public Records Act. Petitioner Michael J. Aguirre was denied access by Respondent to
26 all the records sought under unlawful pretenses.
27 18. Gavin Newsom is the Governor of the State of California. Governor Newsom’s
28 office, through its Cabinet-level agencies and staff, is in possession of the records sought, was
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FIRST AMENDED VERIFIED PETITION AND COMPLAINT
1 requested access to the records sought by Petitioner, and thereafter denied Petitioner access to
2 said records.
3 19. Ana Matosantos is the Cabinet Secretary for Governor Gavin Newsom. As the
4 Governor’s most involved official in the conception and enforcement of the PG&E-led scheme
5 which took shape in the form of AB 1054, she played a critical role in the events alleged below
6 which necessitate the Court’s intervention to ensure timely and forthright production of records to
7 which the public is entitled.
8 20. Respondent California Government Operations Agency (“GovOps”) is the
9 California Government Agency responsible for administering certain state operations including
10 procurement, real estate, information technology and human resources. GovOps was created by
11 the Governor’s Office in July 2013 and reports directly to Governor Newsom. Respondent is in
12 possession of the records sought, was requested access to the records sought by Petitioner, and
13 thereafter denied Petitioner access to said records.
14 21. Marybel Batjer is the President of the California Public Utilities Commission
15 (CPUC). She was appointed to that position on July 12, 2019, the same day Governor Newsom
16 signed AB 1054 into law. Before her ascendency to the Presidency of the CPUC, Batjer was the
17 executive officer of GovOps, holding the position of Secretary therein. The Governor’s Office
18 has admitted Batjer played a major role in the conception of AB 1054, which occurred while she
19 was the Secretary of GovOps and before she became the President of the CPUC.
20 22. The true names and capacities of those Respondents sued herein as DOES 1
21 through 50, inclusive, whether individual, corporate, associate or otherwise, are unknown to
22 Petitioner, who sues those Respondents by such fictitious names. When the DOE parties’ true
23 names and capacities and their actual involvement in the matters alleged herein are ascertained,
24 Petitioner will amend this complaint to accurately reflect the same.
25 23. Petitioner is informed and believes, and thereon alleges, that each of the
26 fictitiously named defendants designated hereunder as a DOE is responsible in some manner for
27 the occurrences alleged herein, and that Petitioner’s damages as herein alleged were proximately
28 caused or contributed to by their conduct.
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FIRST AMENDED VERIFIED PETITION AND COMPLAINT
1 24. Petitioner is informed and believes, and thereon alleges, that at all relevant times
2 herein, each of the Respondents was the agent, employee, partners, joint venture, alter ego, and/or
3 co-conspirator of one or more of the remaining Respondents and in doing the acts alleged herein,
4 was acting within the purpose, course and scope of such agency, employment joint venture or
5 conspiracy, and with the consent, permission or ratification of one or more remaining Petitioner.
6 JURISDICTION AND VENUE
7 25. Jurisdiction is pursuant to Cal. Code Civ. Proc. § 410.10 and Cal. Const. Art I, Sec
8 3 and Art. VI, § 10, which confers upon superior courts original jurisdiction over applications for
9 mandamus, injunctive and declaratory relief.
10 26. Venue in San Francisco County is proper under Gov. Code, § 6259, subd. (a).
11 because some or all the public records sought are located in San Francisco County.
12 CONTEXT IN WHICH CLAIMS ARISE
13 27. On July 12, 2019, the Legislature passed Assembly Bill (AB) 1054, after only six
14 days since the bill’s authors rewrote substantial portions thereof and after only fifteen days since
15 its introduction to the public through the gut-and-amend legislative technique.5 The Governor
16 and his supporters represented that AB 1054 would address the epidemic of utility-caused
17 catastrophic wildfires in California.
18 28. California has long had in place minimum standards and safety regulations which,
19 if followed, would prevent utility infrastructure from becoming the cause of catastrophic
20 wildfires. Most notably, General Order (GO) 95 dictates minimum standards for line clearance,
21 cutting of vegetation growing near power lines, hardening of lines against wind, maintenance of
22 lines, and response to dangerous conditions affecting lines. A cross-section of utility-caused
23 catastrophic wildfires in California from 2015 to 2018 reveals their cause to be the electric
24 utilities’ imprudent management of their infrastructure, in violation of GO 95.
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26 The California State Legislature Glossary of Legislative Terms explains a “gut and amend”
occurs “[w]hen amendments to a bill remove the current contents in their entirety and replace
27 them with different provisions.” A bill introduced through such a procedure avoids the rigors of
the legislative process by not being heard in full committees during the regular scheduled
28 legislative session.
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FIRST AMENDED VERIFIED PETITION AND COMPLAINT
1 29. The IOUs’ repeated violations of GO 95’s overhead power line safety regulations
2 caused over 100 deaths, tens of thousands of structures destroyed, and tens of billions in property
3 damage:
4
Date Fire Cause // Utility Damage
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GO 95 Rule Implicated
6 10/22/07 Witch Power lines contacted each other; SDG&E 2 deaths; 40
damaged lines left energized for 6 hours. injured; 1,141
7 Rule 38 (clearance). homes lost
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10/22/07 Guejito Wire contacted incorrectly placed power SDG&E Merged with
9 line. Witch Fire
Rule 38 (clearance).
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11 10/22/07 Rice Tree limb fell onto power line. SDG&E 206 homes
Rule 35 (vegetation).
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9/9/15 Butte Tree limb fell onto power line. PG&E 2 deaths, 965
13 Rule 35 (vegetation). structures
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10/8/17 Redwood Trees fell in separate locations onto same PG&E 9 deaths; 546
15 power line.6 structures
Rule 35 (vegetation).
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10/8/17 Sulphur Wind knocked down power pole, power PG&E 162 structures
17 lines contacted ground.
Rule 31.1 (maintenance).
18
10/8/17 Norrbom Trees fell onto five power lines. PG&E PG&E 3 deaths, 1,355
19 Adobe caused one fire by reenergizing a downed structures
Patrick line.
20 Pythian Rules 31.1 (maintenance) and 35
21 Nuns (vegetation).
22 10/8/17 Atlas Two trees in two locations fell onto the PG&E 6 deaths, 783
same power line. structures
23 Rules 35 (vegetation), 38 (clearance).
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26 6
The fires dated October 8, 2017, were collectively referred to by news outlets as the Northern
27 California Fire Siege. See Cal Fire, “CAL FIRE Investigators Determine Causes of 12 Wildfires
in Mendocino, Humboldt, Butte, Sonoma, Lake, and Napa Counties,” June 8, 2018 press release,
28 https://fire.ca.gov/media/5100/2017_wildfiresiege_cause.pdf
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FIRST AMENDED VERIFIED PETITION AND COMPLAINT
1 12/4/17 Thomas Power lines contacted each other due to SCE 2 deaths, 1063
high winds.7 structures
2 Rule 38 (clearance).
3 11/8/18 Woolsey Ventura County Fire Department SCE 1,643 structures
determined SCE equipment caused the
4
fire.
5 Likely GO 95 violations.
6 11/8/18 Camp Equipment failure due to lack of PG&E 85 deaths, 13,972
maintenance; failed equipment caused structures
7 sparks which started fire.8
PG&E lines blown by high winds into
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nearby vegetation at two separate points.9
9 Rules 35 (vegetation), 38 (clearance).
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11 30. Instead of addressing the above-demonstrated problem, AB 1054’s various
12 provisions in their totality would relieve California’s investor-owned utilities (IOUs) of financial
13 responsibility from the consequences of causing future catastrophic wildfires. AB 1054
14 effectively transfers future wildfire liabilities from the utility company and its shareholders to the
15 least blameworthy party in the equation: utility customers.
16 31. AB 1054’s primary means for effectuating that goal is the newly-established
17 Wildfire Fund, a self-insurance scheme to gather money from both the investor-owned electric
18 utilities (IOUs) and their customers to assist the IOUs in paying claims against them whenever
19 their equipment causes wildfires. While the concept of a self-insurance fund for natural disaster
20 costs is not in itself unlawful, the implementation thereof to wildfire damages caused by the
21 IOUs’ unsafe operation of their infrastructure likely violates the IOU customers’ constitutional
22 rights relating to coerced government takings of private property. Utility customers did not cause
23 the IOUs to manage their infrastructure in an unsafe operation, yet they are required by AB 1054
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25 Ventura County Fire Department, “VCFD Determines Cause of the Thomas Fire,” press release,
https://vcfd.org/news/335-vcfd-determines-cause-of-the-thomas-fire
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26 JD Morris, “Camp Fire failure part of PG&E’s pattern of poor maintenance, regulators say,” SF
Chronicle (Dec. 3, 2019), https://www.sfchronicle.com/california-wildfires/article/Regulators-
27 PG-E-could-have-prevented-Camp-Fire-14877131.php
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Cal Fire, “CAL FIRE Investigators Determine Cause of the Camp Fire,” press release dated
28 May 15, 2019, https://fire.ca.gov/media/5038/campfire_cause.pdf
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FIRST AMENDED VERIFIED PETITION AND COMPLAINT
1 to shoulder the risk of the IOUs’ inevitable wildfire liabilities.
2 32. Said incipient constitutional violation is aggravated by the inequitable distribution
3 of that risk between the IOUs and their customers. IOUs may withdraw money from the Wildfire
4 Fund to an amount up to three times the amount of total contributions each have made to the Fund
5 while simultaneously capping IOU wildfire liability to merely 20% of their rate base – the value
6 of the assets from which they provide service. The Wildfire Fund would, in other words,
7 subsidize IOU liability in the event of a catastrophic wildfire.
8 33. $900 million every year from utility customers will be collected through a non-
9 bypassable charge on customer bills which would be funneled into the Wildfire Fund, totaling
10 $13.5 billion over the fifteen-year life of the charge. The non-bypassable charge to be imposed is
11 in fact a fifteen-year extension of a charge already imposed upon utility customers to pay for the
12 overpriced energy purchased by the California Department of Water Resources during the
13 infamous electricity crisis at the turn of the century.
14 34. AB 1054 completes its transfer of wildfire liabilities onto utility customers by
15 uprooting long-standing principles that all rates charged to utility customers be just and
16 reasonable. AB 1054 lowered the legal standard in electric utility cost recovery proceedings for
17 wildfire liabilities by no longer requiring IOUs such as PG&E to affirmatively demonstrate they
18 acted as prudent managers of their equipment which caused a catastrophic wildfire. Utility
19 customers now have the burden of demonstrating in the first instance such IOUs acted
20 unreasonably in causing such fires.
21 35. Moreover, the degree to which an IOU acted reasonably is now determined by
22 reference to the conduct of other similarly-situated utility companies and factors beyond a
23 utility’s control, such that utility companies which are in fact in violation of wildfire safety
24 standards such as General Order 95 are no longer deemed to have acted unreasonably. These
25 changes disproportionately favor the utilities; so much so, that utility customers will be denied a
26 fair opportunity to prevent the utilities from passing on more of their imprudently caused wildfire
27 costs onto California ratepayers.
28 ///
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FIRST AMENDED VERIFIED PETITION AND COMPLAINT
1 36. Meanwhile, the Legislature made no specific provisions for proactive wildfire
2 safety enforcement, including aggressive and regular inspection of overhead electric supply lines
3 in high fire-risk areas – action that is needed to ensure no future wildfire liabilities are incurred in
4 the first instance. In short, the underlying fire dangers remain, while electric utility customers are
5 burdened with multi-billion-dollar wildfire liabilities caused by imprudent IOUs.
6 37. AB 1054 is not the result of sudden collective Legislative inspiration to prop up
7 the electric utilities at the expense of utility customers. As detailed below, its myriad provisions
8 against consumers are the product of a persistent and aggressive campaign of legislative lobbying,
9 legal maneuvering, hefty political contributions, and regulatory capture – nay, adverse
10 domination – of the Governor, the Legislature, and the State of California’s most powerful
11 regulatory body.
12 38. It is within this context that Petitioner seeks related records from Respondent.
13 I. The Records Requested Relate to Pacific Gas & Electric Company’s Adverse
Domination of California’s Most Powerful Public Agency, the Legislature, and
14 Governor Newsom
15 A. PG&E Has Long Achieved Adverse Domination of its Regulator
16 39. The decades-long failure of the California Public Utilities Commission (CPUC) to
17 fulfill its mission to regulate the state’s investor-owned, stock-traded electric utilities became
18 readily apparent in November 2018, when PG&E caused the Camp Fire, which killed over 150
19 people, destroyed tens of thousands of homes, and inflicted billions of dollars in property damage
20 upon Californians.
21 40. In response to the Camp Fire, United States District Court Judge William Alsup,
22 overseeing PG&E’s felony probation from an earlier utility equipment-caused disaster, issued a
23 January 2019 Order to Show Cause why the terms of PG&E’s probation should not be altered to
24 require PG&E to inspect its equipment likely to cause more fires.
25 41. PG&E’s felony probation began in 2010 when it was convicted five times over for
26 felonious violations of safety rules that caused a natural gas explosion in San Bruno, California.
27 Said explosion leveled an entire neighborhood, killing 8 people and destroying over 40 homes.
28 PG&E was also convicted of obstruction of justice in connection with federal authorities’
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FIRST AMENDED VERIFIED PETITION AND COMPLAINT
1 investigation of the San Bruno explosion.
2 42. Judge Alsup’s Order to Show Cause specifically proposed that PG&E, as a
3 condition of its probation, inspect all overhead power lines in high fire threat zones, perform
4 vegetation management and other needed safety operations to those lines, and operate only those
5 it could certify as being safe:
6 In light of PG&E’s history of falsification of inspection reports, PG&E shall,
between now and the 2019 Wildfire Season, re-inspect all of its electrical grid and
7 remove or trim all trees that could fall onto its power lines, poles or equipment in
high-wind conditions, branches that might bend in high wind and hit power lines,
8 poles or equipment, and branches that could break off in high wind and fall onto
power lines, poles or equipment; shall identify and fix all conductors that might
9 swing together and arc due to slack and/or other circumstances under high-wind
conditions; shall identify and fix damaged or weakened poles, transformers, fuses
10 and other connectors; and shall identify and fix any other condition anywhere in its
grid similar to any condition that contributed to any previous wildfires.
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The trees and branches to be removed are not limited to those within the distances
12 prescribed by the California Public Resources Code but extend farther to any tree
or branch posing the dangers described above.
13
14 43. Longstanding CPUC rules, such as General Order (GO) 95, already required
15 PG&E to make such inspection and assurance of safe operations as Judge Alsup proposed, but
16 PG&E had been out of compliance with GO 95 for decades.
17 44. PG&E refused, claiming to Judge Alsup it would take hundreds of billions of
18 dollars and many years to conduct Judge Alsup’s proposed routine safety measures that were long
19 past overdue. PG&E claimed:
20 Although the precise costs of the Court’s proposal are difficult to predict with
certainty, PG&E estimates that it would need to remove more than 100 million
21 trees, and that doing so before June 21, 2019, would require the labor of more than
650,000 full-time employees. PG&E does not believe that it could assemble a
22 workforce of such magnitude, as it does not believe that there are enough qualified
tree trimmers and pruners available in the hiring market.
23
…
24 Moreover, even if qualified personnel existed, the other resources do not. PG&E
estimates that the cost of full compliance with the order might approach between
25 $75 billion to $150 billion, and PG&E does not have the ability to raise those
funds.
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FIRST AMENDED VERIFIED PETITION AND COMPLAINT
1
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1 Maria C. Severson, Esq., SBN 173967 AGUIRRE & SEVERSON, LLP 2 501 West Broadway, Suite 1050 San Diego, CA 92101 ELECTRONICALLY 3 Telephone: (619) 876-5364 Facsimile: (619) 876-5368 F I L E D Superior Court of California, 4 County of San Francisco Attorney for Petitioner and Plaintiff 12/10/2019 5 Clerk of the Court BY: KALENE APOLONIO Deputy Clerk 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 11 MICHAEL J. AGUIRRE, an individual, Case No. CGC-19-580685 12 Petitioner and Plaintiff, FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDAMUS 13 v. (CAL. CODE CIV. PROC. § 1085) AND 14 CALIFORNIA GOVERNMENT COMPLAINT FOR DECLARATORY OPERATIONS AGENCY; and DOES 1 to RELIEF (CAL. CODE CIV. PROC. § 1060) 15 50, inclusive, UNDER CALIFORNIA STATE CONSTITUTION ART. I, SEC. 3 AND 16 Respondents and Defendants. CALIFORNIA'S PUBLIC RECORD LAWS (CAL. GOV. CODE § 6250) 17 18 19 20 21 22 23 24 25 26 27 28 1 FIRST AMENDED VERIFIED PETITION AND COMPLAINT 1 TABLE OF CONTENTS 2 INTRODUCTION .................................................................................................................4 3 PARTIES AND KEY PLAYERS ...............................................................................................7 4 JURISDICTION AND VENUE .................................................................................................9 5 CONTEXT IN WHICH CLAIMS ARISE ..................................................................................9 6 I. The Records Requested Relate to Pacific Gas & Electric Company’s Adverse Domination of California’s Most 7 Powerful Public Agency, the Legislature, and Governor Newsom .....................................................................................13 8 A. PG&E Has Long Achieved Adverse 9 Domination of its Regulator ..................................................................13 10 B. PG&E Has Adversely Dominated Both the Governor and the Legislature ................................................................16 11 II. The Records Requested Relate to PG&E’s Wielding 12 of its Influence over State Government to Ensure Passage of AB 1054 ..............................................................................20 13 III. Cabinet Secretary Matosantos, the Architect of AB 1054, 14 Made Numerous Misrepresentations to the Legislature to Secure Passage of the Bill .............................................................................24 15 A. Matosantos Misrepresented the Ultimate 16 Beneficiaries of AB 1054’s Economic and Legal Restructuring of California Utility Regulation ...........................27 17 B. Matosantos Falsely Represented that AB 1054 18 Would Ensure PG&E’s Compliance with Safety Regulations with Which PG&E Was Already 19 Required to Comply ..............................................................................29 20 C. Matosantos Falsely Insinuated the IOUs’ Participation in AB 1054’s Wildfire Fund Meant 21 the IOUs Had Received Safety Certifications .......................................32 22 D. Matosantos Falsely Insinuated the Issuance of Safety Certifications in AB 1054 Meant the IOUs 23 Had Been Certified by the CPUC As Being Safe Actors......................36 24 IV. The Governor has Admitted GovOps’ Former Executive Officer, Marybel Batjer, Played a Critical Role 25 in the Formulation of AB 1054 Alongside Cabinet Secretary Matosantos ...........................................................................38 26 PETITIONER’S PUBLIC RECORDS REQUESTS 27 AND RESPONDENTS’ DENIALS .........................................................................................40 28 2 FIRST AMENDED VERIFIED PETITION AND COMPLAINT 1 I. Respondent GovOps Denied Access to Then-Secretary Batjer’s Public Records Through Blanket 2 Assertions of Exemptions and Unresponsive Productions................................41 3 II. Similar Records Denials by Governor Newsom and Cabinet Secretary Matosantos is Part and 4 Parcel of a Pattern to Stonewall Petitioner .......................................................44 5 FIRST CAUSE OF ACTION ...................................................................................................46 Writ of Mandate (CCP § 1085), Prohibition, or Other Extraordinary Relief 6 SECOND CAUSE OF ACTION ..............................................................................................48 7 Declaratory Relief (Cal. Code Civ. Proc. § 1060) 8 PRAYER FOR RELIEF............................................................................................................48 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 FIRST AMENDED VERIFIED PETITION AND COMPLAINT 1 INTRODUCTION 2 By this verified petition and complaint, Petitioner and Plaintiff alleges: 3 1. This complaint seeks an order of the court requiring Respondents to produce 4 records pursuant to their ministerial duty under Article I, Section 3 of the California Constitution 5 and the California Public Records Act. 6 2. The records sought relate to a matter of great public interest: Pacific Gas & 7 Electric Company’s (PG&E) scheme to ensure its survival by leaning on its carefully cultivated 8 relationship with Governor Gavin Newsom’s (Governor) as his single most powerful and 9 generous campaign contributor. To ensure the Governor could induce action on PG&E’s behalf, 10 PG&E also made millions of dollars of campaign contributions to legislators, political action 11 committees, and state-level political parties during the 2018 election cycle. PG&E then spent 12 tens of millions more for an army of lobbyists to ensure its campaign contribution beneficiaries 13 stayed on-message.1 14 3. The Governor has indeed taken actions since January 2019 to secure PG&E’s 15 status as the nation’s single largest and most wealthy investor-owned electric utility company, 16 despite PG&E causing catastrophic wildfires which collectively caused over $30 billion in 17 damages. PG&E and its associated interests met with the Governor’s cabinet members and hired 18 team of experts at least fourteen (14) times between his inauguration in January 2019 and July 19 2019. Newsom consummated PG&E’s scheme by using his influence and power to secure 20 passage of a series of laws which cumulatively have the effect of offloading billions of future 21 electric utility shareholder wildfire liabilities onto utility customers that would not otherwise have 22 been paid by utility customers. 23 4. The vehicle for PG&E’s scheme was Assembly Bill (AB 1054), signed into law on 24 July 12, 2019. Shortly before AB 1054’s passage, an investigative reporter from Sacramento 25 local news station ABC 10 released a three-part video series in which he revealed that Governor 26 Newsom accepted $208,400 in 2018 gubernatorial campaign contributions from California’s 27 1 ABC 10, “How California fires are going to cost us all: FIRE – POWER – MONEY, Ep. 3 of 28 3,” dated July 10, 2019, timestamp 14:15 – 14:22. 4 FIRST AMENDED VERIFIED PETITION AND COMPLAINT 1 largest investor-owned electric utility (IOU), PG&E, alongside a $500,000 donation to the 2 California Democratic Party. 3 5. A Washington Post investigative team thereafter revealed the $208,400 4 contribution was but one of many such high-dollar-amount contributions made towards the 5 political ambitions of both the Governor and his close family members.2 Over the course of two 6 decades, PG&E gave, and the Governor and his family members accepted, $693,000 to fund their 7 various projects, including the Governor’s mayoral campaigns. In other words, California’s 8 Governor was politically indentured to the entity who stood to gain the most from the financial 9 and legal protections bestowed upon IOUs by AB 1054. 10 6. The records request at issue is pending at the agency in possession of records 11 created by one of the Governor’s highest-level appointees tasked with carrying out the PG&E 12 continuation scheme: The California Government Operations Agency (GovOps). The Governor’s 13 appointee who created the records sought was the executive officer of GovOps at the time the 14 records were created. Since then, she has become the President of the California Public Utilities 15 Commission (CPUC): Marybel Batjer (Batjer). 16 7. Gov. Newsom has admitted CPUC President Batjer played a major role in the 17 drafting of AB 1054. The Governor’s office identified Batjer, then-Secretary of GovOps, as the 18 first member of the Governor’s Wildfire Strike Force, a handpicked group of subject matter 19 experts tasked with addressing the “most vexing public policy challenge [of] the equitable 20 distribution of wildfire liability.”3 21 8. Ms. Batjer served on the Wildfire Strike Force with Cabinet Secretary Ana 22 Matosantos, who has been identified by AB 1054’s authors as the principal architect behind the 23 bill’s Wildfire Fund mechanism by which utility customers will be made to subsidize utility- 24 caused wildfire liabilities in perpetuity. Indeed, Matosantos spoke at every such legislative 2 25 Douglas MacMillan and Neena Satija, “PG&E helped fund the careers of Calif. governor and his wife. Now he accuses the utility of ‘corporate greed.’” The Washington Post (Nov. 11, 2019), 26 available at https://www.washingtonpost.com/business/2019/11/11/pge-helped-fund-careers-calif- governor-his-wife-now-he-accuses-utility-corporate-greed/ 3 27 Governor’s Wildfire Strike Force, “Wildfires and Climate Change: California’s Energy Future,” p. 2-3, 10 (“…the most vexing public policy challenge [of] the equitable distribution of wildfire 28 liability.”). 5 FIRST AMENDED VERIFIED PETITION AND COMPLAINT 1 hearing as the Governor’s Office’s principal representative. The Governor has even designated 2 Matosantos as his “energy czar” at the helm of an “energy strike team” which includes other top- 3 ranking cabinet members.4 4 9. On July 12, 2019, Governor Newson signed AB 1054 into law. The same day, he 5 announced his appointment of Batjer as President of the CPUC. Batjer is intimately involved 6 with the PG&E continuation scheme led by both Governor Newsom and Cabinet Secretary 7 Matosantos. 8 10. On July 18, 2019, Petitioner filed a lawsuit on behalf of two Pacific Gas & Electric 9 (PG&E) customers to invalidate AB 1054 as violative of their constitutional rights under the Due 10 Process and Takings Clauses because the law was enacted to fulfill the predominantly private, 11 rather than public, purpose of insulating investor-owned utilities from the financial consequences 12 of their catastrophic wildfire-causing safety violations. 13 11. In furtherance of the same, Petitioner has sent Public Records Act (PRA) requests 14 to various government agencies involved in the drafting of, or named in, AB 1054. Among the 15 PRA requests Petitioner sent to various government agencies regarding AB 1054 were requests to 16 Governor Newsom, Cabinet Secretary Matosantos, and the custodian of Marybel Batjer’s records 17 at the time of AB 1054’s drafting: GovOps. 18 12. The public has a profound interest in obtaining public records of communications 19 regarding how AB 1054 became law in 2019. PG&E faced tens of billions of dollars in fire 20 victim claims in 2019, in amounts above and beyond PG&E’s fire insurance. PG&E filed for 21 reorganization in bankruptcy court in San Francisco. Meanwhile, PG&E leveraged its personal 22 relationship with the Governor along with several other state officials to put forward a PG&E 23 financial bailout plan. 24 13. This plan worked its way through the Governor’s Wildfire Strike Force and a 25 report authored by a Governor-controlled wildfire law commission that repeated PG&E’s false 26 narrative that it faced a wildfire cost recovery standard administered by the CPUC that was 4 27 Sophia Bollag and Bryan Anderson, “Newsom names ‘energy czar’ amid California blackouts, suggests state could take over PG&E,” Sacramento Bee (November 1, 2019), available at 28 https://www.sacbee.com/news/politics-government/capitol-alert/article236917773.html 6 FIRST AMENDED VERIFIED PETITION AND COMPLAINT 1 protracted and uncertain. PG&E also proposed that it be protected by a wildfire claims fund that 2 would pay off PG&E’s future fire victims using utility customer funds. The plan also called for 3 PG&E to pay previous fire victims with $6.75 billion in PG&E stock. 4 14. The value of stock to be given to fire victims under PG&E’s plan depended on 5 PG&E’s ability to pay for fires it caused in 2019 and in later years. Under the plan, utility 6 customers, without a due process hearing were to be forced to pre-fund PG&E’s fire claim 7 liabilities for fires that occurred in 2019 and later. This case seeks the records of communications 8 that will allow utility customers to understand the key details of this scheme. 9 15. As alleged extensively below, Respondent has both resorted to blanket assertions 10 of exemptions and privileges to avoid disclosure and has misconstrued Petitioner’s requests in 11 bad faith to create pretexts upon which to delay their disclosure of records. Neither tactic is in 12 keeping with the PRA’s policy of broad public access to records concerning the public’s business. 13 16. Petitioner thereby petitions this Court to exercise its power under Art. I, Sec. 3 of 14 the California Constitution and the California PRA to conduct in camera review of the sought- 15 after records and require disclosures be made to vindicate Petitioner’s rights. The public deserves 16 to know why and in what manner the Governor, his Cabinet and staff, his Cabinet-level agencies, 17 and his appointees took part in PG&E’s scheme. More importantly, the public deserves to know 18 whether it can place its trust in the Governor’s other efforts to address the utility-caused 19 catastrophic wildfire problem. The public is entitled to know whose interests Governor 20 Newsom’s administration has at heart with AB 1054 and other measures the Governor claims is 21 for wildfire safety and energy utility reform. 22 PARTIES AND KEY PLAYERS 23 17. Petitioner Michael J. Aguirre is an individual who requested the public records 24 sought in this proceeding under Art. I, Sec. 3 of the California State Constitution and the 25 California Public Records Act. Petitioner Michael J. Aguirre was denied access by Respondent to 26 all the records sought under unlawful pretenses. 27 18. Gavin Newsom is the Governor of the State of California. Governor Newsom’s 28 office, through its Cabinet-level agencies and staff, is in possession of the records sought, was 7 FIRST AMENDED VERIFIED PETITION AND COMPLAINT 1 requested access to the records sought by Petitioner, and thereafter denied Petitioner access to 2 said records. 3 19. Ana Matosantos is the Cabinet Secretary for Governor Gavin Newsom. As the 4 Governor’s most involved official in the conception and enforcement of the PG&E-led scheme 5 which took shape in the form of AB 1054, she played a critical role in the events alleged below 6 which necessitate the Court’s intervention to ensure timely and forthright production of records to 7 which the public is entitled. 8 20. Respondent California Government Operations Agency (“GovOps”) is the 9 California Government Agency responsible for administering certain state operations including 10 procurement, real estate, information technology and human resources. GovOps was created by 11 the Governor’s Office in July 2013 and reports directly to Governor Newsom. Respondent is in 12 possession of the records sought, was requested access to the records sought by Petitioner, and 13 thereafter denied Petitioner access to said records. 14 21. Marybel Batjer is the President of the California Public Utilities Commission 15 (CPUC). She was appointed to that position on July 12, 2019, the same day Governor Newsom 16 signed AB 1054 into law. Before her ascendency to the Presidency of the CPUC, Batjer was the 17 executive officer of GovOps, holding the position of Secretary therein. The Governor’s Office 18 has admitted Batjer played a major role in the conception of AB 1054, which occurred while she 19 was the Secretary of GovOps and before she became the President of the CPUC. 20 22. The true names and capacities of those Respondents sued herein as DOES 1 21 through 50, inclusive, whether individual, corporate, associate or otherwise, are unknown to 22 Petitioner, who sues those Respondents by such fictitious names. When the DOE parties’ true 23 names and capacities and their actual involvement in the matters alleged herein are ascertained, 24 Petitioner will amend this complaint to accurately reflect the same. 25 23. Petitioner is informed and believes, and thereon alleges, that each of the 26 fictitiously named defendants designated hereunder as a DOE is responsible in some manner for 27 the occurrences alleged herein, and that Petitioner’s damages as herein alleged were proximately 28 caused or contributed to by their conduct. 8 FIRST AMENDED VERIFIED PETITION AND COMPLAINT 1 24. Petitioner is informed and believes, and thereon alleges, that at all relevant times 2 herein, each of the Respondents was the agent, employee, partners, joint venture, alter ego, and/or 3 co-conspirator of one or more of the remaining Respondents and in doing the acts alleged herein, 4 was acting within the purpose, course and scope of such agency, employment joint venture or 5 conspiracy, and with the consent, permission or ratification of one or more remaining Petitioner. 6 JURISDICTION AND VENUE 7 25. Jurisdiction is pursuant to Cal. Code Civ. Proc. § 410.10 and Cal. Const. Art I, Sec 8 3 and Art. VI, § 10, which confers upon superior courts original jurisdiction over applications for 9 mandamus, injunctive and declaratory relief. 10 26. Venue in San Francisco County is proper under Gov. Code, § 6259, subd. (a). 11 because some or all the public records sought are located in San Francisco County. 12 CONTEXT IN WHICH CLAIMS ARISE 13 27. On July 12, 2019, the Legislature passed Assembly Bill (AB) 1054, after only six 14 days since the bill’s authors rewrote substantial portions thereof and after only fifteen days since 15 its introduction to the public through the gut-and-amend legislative technique.5 The Governor 16 and his supporters represented that AB 1054 would address the epidemic of utility-caused 17 catastrophic wildfires in California. 18 28. California has long had in place minimum standards and safety regulations which, 19 if followed, would prevent utility infrastructure from becoming the cause of catastrophic 20 wildfires. Most notably, General Order (GO) 95 dictates minimum standards for line clearance, 21 cutting of vegetation growing near power lines, hardening of lines against wind, maintenance of 22 lines, and response to dangerous conditions affecting lines. A cross-section of utility-caused 23 catastrophic wildfires in California from 2015 to 2018 reveals their cause to be the electric 24 utilities’ imprudent management of their infrastructure, in violation of GO 95. 25 5 26 The California State Legislature Glossary of Legislative Terms explains a “gut and amend” occurs “[w]hen amendments to a bill remove the current contents in their entirety and replace 27 them with different provisions.” A bill introduced through such a procedure avoids the rigors of the legislative process by not being heard in full committees during the regular scheduled 28 legislative session. 9 FIRST AMENDED VERIFIED PETITION AND COMPLAINT 1 29. The IOUs’ repeated violations of GO 95’s overhead power line safety regulations 2 caused over 100 deaths, tens of thousands of structures destroyed, and tens of billions in property 3 damage: 4 Date Fire Cause // Utility Damage 5 GO 95 Rule Implicated 6 10/22/07 Witch Power lines contacted each other; SDG&E 2 deaths; 40 damaged lines left energized for 6 hours. injured; 1,141 7 Rule 38 (clearance). homes lost 8 10/22/07 Guejito Wire contacted incorrectly placed power SDG&E Merged with 9 line. Witch Fire Rule 38 (clearance). 10 11 10/22/07 Rice Tree limb fell onto power line. SDG&E 206 homes Rule 35 (vegetation). 12 9/9/15 Butte Tree limb fell onto power line. PG&E 2 deaths, 965 13 Rule 35 (vegetation). structures 14 10/8/17 Redwood Trees fell in separate locations onto same PG&E 9 deaths; 546 15 power line.6 structures Rule 35 (vegetation). 16 10/8/17 Sulphur Wind knocked down power pole, power PG&E 162 structures 17 lines contacted ground. Rule 31.1 (maintenance). 18 10/8/17 Norrbom Trees fell onto five power lines. PG&E PG&E 3 deaths, 1,355 19 Adobe caused one fire by reenergizing a downed structures Patrick line. 20 Pythian Rules 31.1 (maintenance) and 35 21 Nuns (vegetation). 22 10/8/17 Atlas Two trees in two locations fell onto the PG&E 6 deaths, 783 same power line. structures 23 Rules 35 (vegetation), 38 (clearance). 24 25 26 6 The fires dated October 8, 2017, were collectively referred to by news outlets as the Northern 27 California Fire Siege. See Cal Fire, “CAL FIRE Investigators Determine Causes of 12 Wildfires in Mendocino, Humboldt, Butte, Sonoma, Lake, and Napa Counties,” June 8, 2018 press release, 28 https://fire.ca.gov/media/5100/2017_wildfiresiege_cause.pdf 10 FIRST AMENDED VERIFIED PETITION AND COMPLAINT 1 12/4/17 Thomas Power lines contacted each other due to SCE 2 deaths, 1063 high winds.7 structures 2 Rule 38 (clearance). 3 11/8/18 Woolsey Ventura County Fire Department SCE 1,643 structures determined SCE equipment caused the 4 fire. 5 Likely GO 95 violations. 6 11/8/18 Camp Equipment failure due to lack of PG&E 85 deaths, 13,972 maintenance; failed equipment caused structures 7 sparks which started fire.8 PG&E lines blown by high winds into 8 nearby vegetation at two separate points.9 9 Rules 35 (vegetation), 38 (clearance). 10 11 30. Instead of addressing the above-demonstrated problem, AB 1054’s various 12 provisions in their totality would relieve California’s investor-owned utilities (IOUs) of financial 13 responsibility from the consequences of causing future catastrophic wildfires. AB 1054 14 effectively transfers future wildfire liabilities from the utility company and its shareholders to the 15 least blameworthy party in the equation: utility customers. 16 31. AB 1054’s primary means for effectuating that goal is the newly-established 17 Wildfire Fund, a self-insurance scheme to gather money from both the investor-owned electric 18 utilities (IOUs) and their customers to assist the IOUs in paying claims against them whenever 19 their equipment causes wildfires. While the concept of a self-insurance fund for natural disaster 20 costs is not in itself unlawful, the implementation thereof to wildfire damages caused by the 21 IOUs’ unsafe operation of their infrastructure likely violates the IOU customers’ constitutional 22 rights relating to coerced government takings of private property. Utility customers did not cause 23 the IOUs to manage their infrastructure in an unsafe operation, yet they are required by AB 1054 24 7 25 Ventura County Fire Department, “VCFD Determines Cause of the Thomas Fire,” press release, https://vcfd.org/news/335-vcfd-determines-cause-of-the-thomas-fire 8 26 JD Morris, “Camp Fire failure part of PG&E’s pattern of poor maintenance, regulators say,” SF Chronicle (Dec. 3, 2019), https://www.sfchronicle.com/california-wildfires/article/Regulators- 27 PG-E-could-have-prevented-Camp-Fire-14877131.php 9 Cal Fire, “CAL FIRE Investigators Determine Cause of the Camp Fire,” press release dated 28 May 15, 2019, https://fire.ca.gov/media/5038/campfire_cause.pdf 11 FIRST AMENDED VERIFIED PETITION AND COMPLAINT 1 to shoulder the risk of the IOUs’ inevitable wildfire liabilities. 2 32. Said incipient constitutional violation is aggravated by the inequitable distribution 3 of that risk between the IOUs and their customers. IOUs may withdraw money from the Wildfire 4 Fund to an amount up to three times the amount of total contributions each have made to the Fund 5 while simultaneously capping IOU wildfire liability to merely 20% of their rate base – the value 6 of the assets from which they provide service. The Wildfire Fund would, in other words, 7 subsidize IOU liability in the event of a catastrophic wildfire. 8 33. $900 million every year from utility customers will be collected through a non- 9 bypassable charge on customer bills which would be funneled into the Wildfire Fund, totaling 10 $13.5 billion over the fifteen-year life of the charge. The non-bypassable charge to be imposed is 11 in fact a fifteen-year extension of a charge already imposed upon utility customers to pay for the 12 overpriced energy purchased by the California Department of Water Resources during the 13 infamous electricity crisis at the turn of the century. 14 34. AB 1054 completes its transfer of wildfire liabilities onto utility customers by 15 uprooting long-standing principles that all rates charged to utility customers be just and 16 reasonable. AB 1054 lowered the legal standard in electric utility cost recovery proceedings for 17 wildfire liabilities by no longer requiring IOUs such as PG&E to affirmatively demonstrate they 18 acted as prudent managers of their equipment which caused a catastrophic wildfire. Utility 19 customers now have the burden of demonstrating in the first instance such IOUs acted 20 unreasonably in causing such fires. 21 35. Moreover, the degree to which an IOU acted reasonably is now determined by 22 reference to the conduct of other similarly-situated utility companies and factors beyond a 23 utility’s control, such that utility companies which are in fact in violation of wildfire safety 24 standards such as General Order 95 are no longer deemed to have acted unreasonably. These 25 changes disproportionately favor the utilities; so much so, that utility customers will be denied a 26 fair opportunity to prevent the utilities from passing on more of their imprudently caused wildfire 27 costs onto California ratepayers. 28 /// 12 FIRST AMENDED VERIFIED PETITION AND COMPLAINT 1 36. Meanwhile, the Legislature made no specific provisions for proactive wildfire 2 safety enforcement, including aggressive and regular inspection of overhead electric supply lines 3 in high fire-risk areas – action that is needed to ensure no future wildfire liabilities are incurred in 4 the first instance. In short, the underlying fire dangers remain, while electric utility customers are 5 burdened with multi-billion-dollar wildfire liabilities caused by imprudent IOUs. 6 37. AB 1054 is not the result of sudden collective Legislative inspiration to prop up 7 the electric utilities at the expense of utility customers. As detailed below, its myriad provisions 8 against consumers are the product of a persistent and aggressive campaign of legislative lobbying, 9 legal maneuvering, hefty political contributions, and regulatory capture – nay, adverse 10 domination – of the Governor, the Legislature, and the State of California’s most powerful 11 regulatory body. 12 38. It is within this context that Petitioner seeks related records from Respondent. 13 I. The Records Requested Relate to Pacific Gas & Electric Company’s Adverse Domination of California’s Most Powerful Public Agency, the Legislature, and 14 Governor Newsom 15 A. PG&E Has Long Achieved Adverse Domination of its Regulator 16 39. The decades-long failure of the California Public Utilities Commission (CPUC) to 17 fulfill its mission to regulate the state’s investor-owned, stock-traded electric utilities became 18 readily apparent in November 2018, when PG&E caused the Camp Fire, which killed over 150 19 people, destroyed tens of thousands of homes, and inflicted billions of dollars in property damage 20 upon Californians. 21 40. In response to the Camp Fire, United States District Court Judge William Alsup, 22 overseeing PG&E’s felony probation from an earlier utility equipment-caused disaster, issued a 23 January 2019 Order to Show Cause why the terms of PG&E’s probation should not be altered to 24 require PG&E to inspect its equipment likely to cause more fires. 25 41. PG&E’s felony probation began in 2010 when it was convicted five times over for 26 felonious violations of safety rules that caused a natural gas explosion in San Bruno, California. 27 Said explosion leveled an entire neighborhood, killing 8 people and destroying over 40 homes. 28 PG&E was also convicted of obstruction of justice in connection with federal authorities’ 13 FIRST AMENDED VERIFIED PETITION AND COMPLAINT 1 investigation of the San Bruno explosion. 2 42. Judge Alsup’s Order to Show Cause specifically proposed that PG&E, as a 3 condition of its probation, inspect all overhead power lines in high fire threat zones, perform 4 vegetation management and other needed safety operations to those lines, and operate only those 5 it could certify as being safe: 6 In light of PG&E’s history of falsification of inspection reports, PG&E shall, between now and the 2019 Wildfire Season, re-inspect all of its electrical grid and 7 remove or trim all trees that could fall onto its power lines, poles or equipment in high-wind conditions, branches that might bend in high wind and hit power lines, 8 poles or equipment, and branches that could break off in high wind and fall onto power lines, poles or equipment; shall identify and fix all conductors that might 9 swing together and arc due to slack and/or other circumstances under high-wind conditions; shall identify and fix damaged or weakened poles, transformers, fuses 10 and other connectors; and shall identify and fix any other condition anywhere in its grid similar to any condition that contributed to any previous wildfires. 11 The trees and branches to be removed are not limited to those within the distances 12 prescribed by the California Public Resources Code but extend farther to any tree or branch posing the dangers described above. 13 14 43. Longstanding CPUC rules, such as General Order (GO) 95, already required 15 PG&E to make such inspection and assurance of safe operations as Judge Alsup proposed, but 16 PG&E had been out of compliance with GO 95 for decades. 17 44. PG&E refused, claiming to Judge Alsup it would take hundreds of billions of 18 dollars and many years to conduct Judge Alsup’s proposed routine safety measures that were long 19 past overdue. PG&E claimed: 20 Although the precise costs of the Court’s proposal are difficult to predict with certainty, PG&E estimates that it would need to remove more than 100 million 21 trees, and that doing so before June 21, 2019, would require the labor of more than 650,000 full-time employees. PG&E does not believe that it could assemble a 22 workforce of such magnitude, as it does not believe that there are enough qualified tree trimmers and pruners available in the hiring market. 23 … 24 Moreover, even if qualified personnel existed, the other resources do not. PG&E estimates that the cost of full compliance with the order might approach between 25 $75 billion to $150 billion, and PG&E does not have the ability to raise those funds. 26 27 28 14 FIRST AMENDED VERIFIED PETITION AND COMPLAINT 1