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 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*

08/21/2008 10:01 AM To Holly.Bressett@sierraclub.org cc "Jim Sconyers" 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/