In the Zone

Being the outdoorsy type, I read with great interest tales of massive mountaineering exploits. I?m fascinated?but also horrified?by the pros who head up into godforsaken places, particularly those who enter the ?zone.? This is the height where the air is dangerously thin and mountaineers must limit their stay because their bodies are being deprived of ever-essential oxygen. There is another exclusive zone that fascinates and horrifies me. It is a place few are allowed to reach and where all too often major decisions are made. In the words of the current federal administration, it is known as the ?zone of autonomy.? This far-reaching zone could prevent Vice President Dick Cheney from having to disclose the specifics of his energy task force doings?who was involved and what they said. This group entered the off-limits and dangerous zone to develop the country?s fossil-fuel- and nuclear-heavy energy policy. When following the case, which was argued last week before the U.S. Supreme Court, my head spins and I?m left gasping for air. Thanks to the USA Patriot Act, the Federal Energy Regulatory Commission also has an expanded secrecy zone, including liquefied natural gas plants proposed on the shores of California. The risk factor has generated strong local and state opposition, and FERC has not allayed fears. Instead of fully informing the public and officials about findings related to potential dangers of LNG terminals?be they from a terrorist threat, accident, or earthquake?federal regulators are hiding safety studies (see Circuit , March 19, 2004). Consequently, real debate is foreclosed about risks?health, environmental, and financial. Also not fully aired are issues about alternative sources of energy and comparative risks with which people already live. If gas taken from foreign lands is not used to meet demand, what will replace it? Will it be dirty domestic coal and/or wind, solar, or other renewable sources? And what are the costs near and far? In addition to the federal government, the state administration, Legislature, and agencies also have their out-of-reach zones. The open-government laws that apply to the different entities allow a limited number of closed-door proceedings away from the madding crowds. However, there has been a worrisome trend since California?s deregulation fiasco of more frequent entries and longer stays in the high-altitude area. Like very high peaks, this zone should be treated with respect and entered sparingly because those below are being denied the head-clearing oxygen that democracy, specifically open government, provides. Given the fallout from much of the secret deal making during the energy crisis?from the $42 billion in long-term contracts to meetings with utilities and generators?one would hope open government would be embraced. Although we are still cleaning up deregulation?s aftermath, it seems that lesson?the benefit of open decision making?just doesn?t stick. The issue is as important today because no one knows in what direction the energy market is headed. Until the new governor agrees upon a comprehensive long-term energy blueprint, the energy sector will continue to flounder. His plan released last week doesn?t come close to ?comprehensive,? punting decision making to the California Public Utilities Commission. Then there is the CPUC, which has approved costly, secret power agreements. This includes the $8 billion ratepayer bailout to get Pacific Gas & Electric out of Chapter 11, the largest private utility bankruptcy in U.S. history. The dissenting commissioners continue to complain they were denied critical information and kept out of the zone. The commission approved closed-door power-purchase arrangements such as the Mountainview and TrueSolar deals, and it has similar deals, including Palomar, pending. The actions have generated considerable headaches for the commission because the arrangements were not subjected to a reasonableness test and terms were revealed only after they were done deals. In addition, the deal making is, in effect, making policy?albeit inconsistently and in a piecemeal fashion. There is growing outrage over the expansion of the zone. There is also a tug of war within, outside, and between the entities over how often and when to place issues in the exclusive area?be it procurement, health, safety, and environmental issues, or siting matters. While the CPUC has done its share of inaccessible deal making, it is vigorously fighting FERC?s efforts to shut it out of the siting decision on the Long Beach LNG case. It insists it have a say in issues that will affect the health, safety, and pocketbooks of Californians. This week, the California Energy Commission discussed deliberating siting matters behind closed doors. Under the state?s open-meeting law, the commission is allowed secrecy as long as the issue is listed on the commission agenda. The move, however, made CEC member John Geesman a bit queasy. Before moving in that direction, there should be an airing of the potential ramifications with the agency?s counsel, he stated. His fellow commissioners agreed. Fallout from the CPUC?s secret deals led to a bill that would require that all information utilities submit to the CPUC, excluding trade secrets, be public. SB 1488 by Senator Debra Bowen (D-Redondo Beach) creates a presumption of openness. It would allow healthy debate on short- and long-term implications of various power arrangements; including whether better deals?cleaner and less expensive?are available. The bill gives the CPUC discretion about what it deems confidential but it is also potentially problematic if abused. The secret procurement at the commission was seen as an abuse because the secrecy had the apparent effect of providing the utility proposing the deal a strategic advantage. While the Legislature was unhappy with the CPUC?s dealings in the zone, Schwarzenegger tried this week to get the Legislature to fully air its own dealings. He pushed a measure to get the Bagley-Keene Act revoked and replaced by the more stringent Open Meetings Act. It died immediately after birth because it was considered half-baked and faced considerable opposition from lawmakers in both parties. At the public level, a constitutional measure by the California Newspaper Publishers Association will be on the November ballot. It would give ?Californians a right to open government??yet another example of an outbreak of bad reactions to decisions made in the zone. Utilities, generators, and possibly public servants have their reasons for wanting secrecy. Utilities argue that they can squeeze better deals from suppliers if those in competition don?t know what the other is offering. Generators say they have trade secrets that will make their products more expensive if made publicly available. Public servants could well be worried that their roles in private meetings may tie them to corporate interests. I admit that the zone has its intrigue, but as with mountaineering, once you?re so high?beyond prying eyes and public discourse?you?re also in danger of bad judgment and a disastrous fall.

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In the Zone

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