Holly There has been no decision by the PSC on our Petition for Reconsideration, and the thirty days for an appeal has not yet begun to run.
I have attached seven documents relating to the FOIA requests.
The first three documents relate to the request to the PSC and consist of: (1) Sierra's April 17 2008 FOIA request, (2) the PSC Commissioners' May 1, 2008 Vaughn index of records withheld by the Commissioners themselves, and (3) the PSC General Counsel's May 2, 2008 transmission of the PSC documents (1128 from staff) and the Vaughn Index from the Commissioners.
The last four documents all relate to the FOIA request to Gov Manchin: (4) is the FOIA request itself, (5) is the Governor's initial response, (6) is our letter explaining is some detail the basis for our request for a Vaughn index, and (7) is the Gov's acknowledgement of the request for a Vaughn statement.
I believe we should file the suit in both instances. The case against the Governor is straight forward -- a Vaughn statement is necessary to sustain his burden of proof. The PSC case over the documents withheld pursuant to the Vaughn index is obviously harder. The question is not whether they have concealed documents which are not listed on the index. The question is whether the assertion of the claims of exemption in the index are valid, and even if so, whether there are nonetheless reasonably segregable materials that can be released.
There is never any certainty in a challenge to an assertion of exemptions, but the failure to seek in camera review by a Court basically licenses the respondent to take aggressive and unwarranted license with limited exemptions. Especially when tied to the duty to segregate exempt from non-exempt, the challenge is warranted.
Please call if there are any further questions.
Bil
On Fri, Sep 26, 2008 at 12:51 PM, Holly.Bressett@sierraclub.org wrote:
Hi Bill,
Just making sure I didn't miss your message about TrailCo. I haven't worked on getting authorization for the PUC appeal or the two FOIA cases because I am waiting for your responses to my questions regarding the FOIA issues. I want to be sure that the 30-day timer hasn't started on our appeal of the PUC decision. Did they rule on our motion for reconsideration yet?
Holly
Holly Bressett Environmental Law Fellow Sierra Club Environmental Law Program 85 Second St., 2nd Floor San Francisco, CA 94105 (415) 977-5646 (phone) (415) 977-5793 (fax)
*"William V. DePaulo, Esq." william.depaulo@gmail.com*
09/10/2008 12:12 PM To Holly.Bressett@sierraclub.org cc Subject Re: Fw: TrailCo NMF revised
Holly
I am out of town until next Wed and will try to get back to you then with more detail on the FOIA requests.
Bill
On Wed, Sep 10, 2008 at 9:21 AM, <*Holly.Bressett@sierraclub.org*Holly.Bressett@sierraclub.org> wrote:
Hi Bill,
I've been holding off on TrailCo in anticipation of your answers to my questions below. Jim told me you were at the DNC so this may have gotten buried in your inbox. Please get back to me when you can. Thanks,
Holly
Holly Bressett Environmental Law Fellow Sierra Club Environmental Law Program 85 Second St., 2nd Floor San Francisco, CA 94105 (415) 977-5646 (phone) (415) 977-5793 (fax) ----- Forwarded by Holly Bressett/Sierraclub on 09/10/2008 09:21 AM -----
*Holly Bressett/Sierraclub*
08/27/2008 11:00 AM
To "William V. DePaulo, Esq." <*william.depaulo@gmail.com*william.depaulo@gmail.com
cc
"Jim Sconyers" <*jim_scon@yahoo.com* jim_scon@yahoo.com> Subject Re: Fw: TrailCo NMF revised*Link*Notes:///882573400081B039/836E2FFC0D1E63358825749F007855E9/B9F0E5BA5FCFAF44882574AC007FA33D
Hi Bill,
I understand the claim that the Governor's office should have provided a Vauhgn index but the claim against the commission seems like a stretch. Did the index identify and describe the documents? Of course, FOIA is not foolproof but in my experience, it seems like there is nothing else to get unless we know of specific documents that were witheld and not put on the index. If you could elaborate on your thinking that would help me understand what the claim is. If you have statutory cites or case law that might be best.
Is your plan to file the FOIA cases right away and then wait for the decision on reconsideration before filing in state court? When is the soonest you would want to file the FOIA requests. Sorry, I'm totally swamped right now and just trying to prioritize things. Let me know if this should go to the top of my list!
Holly
Holly Bressett Environmental Law Fellow Sierra Club Environmental Law Program 85 Second St., 2nd Floor San Francisco, CA 94105 (415) 977-5646 (phone) (415) 977-5793 (fax)
*"William V. DePaulo, Esq." <**william.depaulo@gmail.com*william.depaulo@gmail.com *>*
08/21/2008 04:13 PM
To *Holly.Bressett@sierraclub.org* Holly.Bressett@sierraclub.org, "Jim Sconyers" <*jim_scon@yahoo.com* jim_scon@yahoo.com>, "Jim Kotcon" <* jkotcon@wvu.edu* jkotcon@wvu.edu>, "Barbara Fallon" <* brbr_fallon@yahoo.com* brbr_fallon@yahoo.com>, "WV Chapter Energy Committee" <*EC@osenergy.org* EC@osenergy.org> cc Subject Re: Fw: TrailCo NMF revised
Holly
Both FOIA requests were filed under the state FOIA which is almost a verbatim reproduction of the federal statute. In short, we do not have an option to sue anywhere except in state court.
PSC - requested all documents pertaining to the April 15, 2008 Joint Stipulation -- the document in which PSC Staff withdrew its opposition in exchange for a laundry list of financial and other incentives.
PSC Staff produced all documents (1100+) responsive to request, as did CAD (700+).
The Commissioners produced a relatively small number of documents and issued a Vaughn index for the balance. Without seeing the docs it is impossible to assess whether the exemptions asserted -- deliberative privilege for internal communications -- is validly asserted.
GOVERNOR - requested ALL documents pertaining to TrAILCo proposal, not merely those relating to April 15 Joint Stip. Governor produced 1100+ documents, most relating to tax he wants to impose on the transmission line if and when built. Importantly, the Gov office refused to produce a Vaughn index. Without such an index they cannot sustain their burden of proof, as all documents are presumed non-exempt unless and until an exemption is asserted and substantiated by an index.
PSC Appeal -- far and away the biggest matter the PSC did not address was CO2 emissions. The PSC took the position that the proposed transmission line was "electron neutral," i.e., that the line didn't "know" where the moving electron originated. That, of course, is technically true. In West Virginia it is also totally specious because 97% of the state's electric energy is generated from coal. And the PSC's August 1 order itself relied on the economic justification associated with 4 billion dollars of construction costs for four (4) new IGCC coal plants now on the drawing boards.
The PSC also totally ignored the fact that all of the purported economic benefits associated with the increased use of coal will be converted to economic leg weights when the impact of a now certain cap and trade system (or carbon tax of some sort) is adopted next year.
I want to emphasize that we don't have any slack time on the appeal or preparation for PATH. TrAILCo's transcript is 3,000 pages long. I lived thru it live but I still need to serve up the case to the Supreme Court, because the PSC has intentionally buried all of the evidence in a 183-page behemoth of a decision issued on August 1. We need to go now.
Please let me know if you need any additional information.
Bill
On Thu, Aug 21, 2008 at 1:40 PM, <*Holly.Bressett@sierraclub.org*Holly.Bressett@sierraclub.org> wrote:
Thanks, Bill. I will need some more information regarding the FOIA appeals. For example, what did you request and what did you receive and what was witheld (or can you even tell what was witheld)? Did the agencies assert any privileges or exemptions? If so, were they lawfully invoked or do you believe the exemptions are being abused. Are we actually bringing suit under FOIA, or the state's public records law. If it is FOIA, wouldn't you want to file in federal court? As for the appeal of the PSC's decision, you make note that the environmental impacts were not properly considered. Could you elaborate? What was considered, what was not, and what law are you relying on?
Jim, at this point, I am still investigating the legal claims (as you can see above). I didn't get the sense that we needed immediate approval since the PSC's decision is not even final yet, and when it becomes final, we have 30 days. If there is a reason to file sooner, please let me know. It is my understanding that you are going to be talking with Aaron Isherwood about how the National Coal Campaign may be able to help with this and the PATH transmission line. I'll follow up with him if it impacts the Supreme Court appeal and/or the FOIA appeals. Thanks to you both,
Holly
Holly Bressett Environmental Law Fellow Sierra Club Environmental Law Program 85 Second St., 2nd Floor San Francisco, CA 94105 (415) 977-5646 (phone) (415) 977-5793 (fax)
*"William V. DePaulo, Esq." <**william.depaulo@gmail.com*william.depaulo@gmail.com *>*
08/21/2008 10:01 AM
To *Holly.Bressett@sierraclub.org* Holly.Bressett@sierraclub.org cc "Jim Sconyers" <*jim_scon@yahoo.com* jim_scon@yahoo.com> Subject Re: Fw: TrailCo NMF revised
Holly
Here is a revised NMF which I hope is responsive to your requests. Please let me know if you have any additional questions or topics you'd like fleshed out in more detail.
All the best,
Bill
On Wed, Aug 20, 2008 at 3:43 PM, <*Holly.Bressett@sierraclub.org*Holly.Bressett@sierraclub.org> wrote:
Hi Bill,
Jim has attached the new matter form and I'm hoping you can supplement it with our legal strategy. I'm confused about the FOIA appeals and the Supreme Court appeal so I was hoping you could separate everything and give me a clear description of the legal claims. If you are anticipating actual FOIA lawsuits in conjunction with all of this let me know, it may make sense to do one authorization for all the legal challenges. Thanks,
Holly
Holly Bressett Environmental Law Fellow Sierra Club Environmental Law Program 85 Second St., 2nd Floor San Francisco, CA 94105 (415) 977-5646 (phone) (415) 977-5793 (fax) ----- Forwarded by Holly Bressett/Sierraclub on 08/20/2008 11:51 AM -----
*Jim Sconyers <**jim_scon@yahoo.com* jim_scon@yahoo.com*>*
08/14/2008 07:41 AM
To Holly Bressett <*holly.bressett@sierraclub.org*holly.bressett@sierraclub.org
cc
aaron isherwood <*aaron.isherwood@sierraclub.org*aaron.isherwood@sierraclub.org
Subject
TrailCo NMF revised
Here is a revised version of our TrailCo powerline NMF. It still needs to go to our ExCom for certain approval.
Jim Sconyers* **jim_scon@yahoo.com* jim_scon@yahoo.com 603.969.6712
Remember: Mother Nature bats last.
-- William V. DePaulo, Esq. 179 Summers Street, Suite 232 Charleston, WV 25301-2163 Tel: 304-342-5588 Fax: 304-342-5505* **william.depaulo@gmail.com* william.depaulo@gmail.com* **www.passeggiata.com* http://www.passeggiata.com/
-- William V. DePaulo, Esq. 179 Summers Street, Suite 232 Charleston, WV 25301-2163 Tel: 304-342-5588 Fax: 304-342-5505* **william.depaulo@gmail.com* william.depaulo@gmail.com* **www.passeggiata.com* http://www.passeggiata.com/
-- William V. DePaulo, Esq. 179 Summers Street, Suite 232 Charleston, WV 25301-2163 Tel: 304-342-5588 Fax: 304-342-5505* **william.depaulo@gmail.com* william.depaulo@gmail.com* **www.passeggiata.com* http://www.passeggiata.com/