Former Westar executive seeks to have utility held in contempt

By Knight Ridder Tribune


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Former Westar Energy executive Douglas Lake has upped the ante in his battle with the company over payment of his legal fees.

The utility's one-time chief strategic officer filed a motion in federal court seeking to have Westar held in civil contempt. The motion came after U.S. District Judge Julie Robinson ordered Westar to pay half the past-due legal fees of Lake's attorneys and those of former Westar Chairman and Chief Executive David Wittig. Lake contends Westar willfully disobeyed Robinson's order by seeking to have him post an equivalent bond, plus $1 million to secure future fees.

"Westar's motion is a sham, with no basis either procedurally or substantively, designed only to delay compliance with the Court's Order," the motion alleges.

Karla Olsen, a Westar spokeswoman, declined to comment on the motion, saying the company had not had a chance to review it. Lake and Wittig were indicted on charges of looting the Topeka-based utility and face a third trial in January. Their first trial ended in a mistrial. The two were convicted in a second trial, but a federal appeals court this year tossed out the convictions.

Under Westar's articles of incorporation, the utility is required to pay any costs that Wittig and Lake incur in civil or criminal proceedings, unless they are found guilty of a crime. The battle over the men's legal fees is shaping up as a major bone of contention and could even lead to the dismissal of their indictment.

Earlier, a federal judge in New York dismissed indictments against 13 of 16 former executives of KPMG after finding the government had pressured the accounting firm to cut off payment of their legal fees. Westar paid the attorney fees incurred by Wittig and Lake in their first trial, nearly $4.7 million in Lake's case. But asserting that the fees were excessive, the utility refused to pay the fees they incurred in their second trial.

Lake claims his fees amounted to $7.3 million. In her order, Robinson directed Westar to pay more than $3.15 million in past-due fees to Lake. She also told Westar to advance all of his legal fees and expenses in his third trial and, if necessary, appeal.

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Electric shock: China power demand drops as coronavirus shutters plants

China Industrial Power Demand 2020 highlights COVID-19 disruption to electricity consumption as factory output stalls; IHS Markit estimates losses equal to Chile's usage, impacting thermal coal, LNG, and Hubei's industrial load.

 

Key Points

An analysis of COVID-19's hit to China's electricity use, cutting industry demand and fuel needs for coal and LNG.

✅ 73 billion kWh loss equals Chile's annual power use

✅ Cuts translate to 30m tonnes coal or 9m tonnes LNG

✅ Hubei peak load 21 percent below plan amid shutdowns

 

China’s industrial power demand in 2020 may decline by as much as 73 billion kilowatt hours (kWh), according to IHS Markit, as the outbreak of the coronavirus has curtailed factory output and prevented some workers from returning to their jobs.

FILE PHOTO: Smoke is seen from a cooling tower of a China Energy ultra-low emission coal-fired power plant during a media tour, in Sanhe, Hebei province, China July 18, 2019. REUTERS/Shivani Singh
The cut represents about 1.5% of industrial power consumption in China. But, as the country is the world’s biggest electricity consumer and analyses of China's electricity appetite routinely underscore its scale, the loss is equal to the power used in the whole of Chile and it illustrates the scope of the disruption caused by the outbreak.

The reduction is the energy equivalent of about 30 million tonnes of thermal coal, at a time when China aims to reduce coal power production, or about 9 million tonnes of liquefied natural gas (LNG), IHS said. The coal figure is more than China’s average monthly imports last year while the LNG figure is a little more than one month of imports, based on customs data.

China has tried to curtail the spread of the coronavirus that has killed more than 1,400 and infected over 60,000 by extending the Lunar New Year holiday for an extra week and encouraging people to work from home, measures that contributed to a global dip in electricity demand as well.

Last year, industrial users consumed 4.85 trillion kWh electricity, accounting for 67% of the country’s total, even as India's electricity demand showed sharp declines in the region.

Xizhou Zhou, the global head of power and Renewables at IHS Markit, said that in a severe case where the epidemic goes on past March, China’s economic growth will be only 4.2% during 2020, down from an initial forecast of 5.8%, while power consumption will climb by only 3.1%, down from 4.1% initially, even as power cuts and blackouts raise concerns.

“The main uncertainty is still how fast the virus will be brought under control,” said Zhou, adding that the impact on the power sector will be relatively modest from a full-year picture in 2020, even though China's electric power woes are already clouding solar markets.

In Hubei province, the epicenter of the virus outbreak, the peak power load at the end of January was 21% less than planned, mirroring how Japan's power demand was hit during the outbreak, data from Wood Mackenzie showed.

Industrial operating rates point to a firm reduction in power consumption in China.

Utilization rates at plastic processors are between 30% and 60% and the low levels are expected to last for another two week, according to ICIS China.

Weaving machines at textile plants are operating at below 10% of capacity, the lowest in five years, ICIS data showed. China is the world’s biggest textile and garment exporter.

 

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India Electricity Prices are Spiking

India spot electricity prices surged on Q3 demand, lifting power tariffs in the spot market as discoms scrambled for supply; Sembcorp SGPL boosted PLF and short-term PPA realizations, benefiting from INR per kWh peaks.

 

Key Points

India spot electricity prices hit Q3 records amid demand spikes, lifting tariffs and aiding Sembcorp SGPL via PLF gains.

✅ Record 10.6 cents/kWh average; 15-minute peak 20.7 cents/kWh

✅ SGPL shifted output to short-term PPA at 7.3 cents/kWh

✅ PLF ramped above 90%, cutting core losses by 30-40%

 

Electricity prices in India, now the third-largest electricity producer globally, bolted to a record high of 10.6 cents/kWh (INR5.1/kWh) in Q3.

A jolt in Indian spot electricity prices could save Sembcorp Industries' Indian business from further losses, even though demand has occasionally slumped in recent years, UOB Kay Hian said.

The firm said spot electricity prices in India bolted to a record high of 10.6 cents/kWh (INR5.1/kWh) in Q3 and even hit a 15-minute peak of 20.7 cents/kWh (9.9/kWh). The spike was due to a power supply crunch on higher electricity demand from power distribution companies, alongside higher imported coal volumes as domestic supplies shrank.

As an effect, Sembcorp Industries' Sembcorp Gayatri Power Limited's (SGPL) losses of $26m in Q1 and $29m in Q2 could narrow down by as much as 30-40%.

On a net basis, SGPL will recognise a significantly higher electricity tariff in 3Q17. By tactically shutting down its Unit #3 for maintenance, Unit #4 effectively had its generation contracted out at the higher short-term PPA tariff of around 7.3 cents/kWh (Rs3.5/kWh).

SGPL also capitalised on the price spike in 3Q17 as it ramped up its plant load factor (PLF) to more than 90%.

“On the back of this, coupled with the effects of reduced finance costs, we expect SGPL’s 3Q17 quarterly core loss to shrink by 30-40% from previous quarters,” UOB Kay Hian said.

Whilst electricity prices have corrected to 7.1 cents/kWh (INR3.4/kWh), the firm said it could still remain elevated on structural factors, even as coal and electricity shortages ease nationwide.

Sembcorp Industries' India operations brought in a robust performance for Q3. PLF for Thermal Powertech Corporation India Limited (TPCIL) hit 91%, whilst it reached 73% for SGPL, echoing the broader trend of thermal PLF up across the sector.

 

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No deal Brexit could trigger electricity shock for Northern Ireland

Northern Ireland No-Deal Power Contingency outlines Whitehall plans to deploy thousands of generators on barges in the Irish Sea, safeguard the electricity market, and avert blackouts if Brexit disrupts imports from the Republic of Ireland.

 

Key Points

A UK Whitehall plan to prevent NI blackouts by deploying generators and protecting cross-border electricity flows.

✅ Barges in Irish Sea to host temporary power generators

✅ Mitigates loss of EU market access in a no-deal Brexit

✅ Ensures NI supply if Republic cuts electricity exports

 

Such a scenario could see thousands of electricity generators being requisitioned at short notice and positioned on barges in the Irish Sea, even as Great Britain's generation mix shapes wider supply dynamics, to help keep the region going, a Whitehall document quoted by the Financial Times states.

An emergency operation could see equipment being brought back from places like Afghanistan, where the UK still has a military presence, the newspaper said.

The extreme situation could arise because Northern Ireland shares a single energy market with the Irish Republic, where Irish grid price spikes have heightened concern about stability.

The region relies on energy imports from the Republic because it does not have enough generating capacity itself, and the UK is aiming to negotiate a deal to allow that single electricity market on the island of Ireland to continue post-EU withdrawal, while virtual power plant proposals for UK homes are explored to avoid outages, the FT stated.

However, if no Brexit deal is agreed Whitehall fears suppliers in the Irish Republic could cut off power because the UK would no longer be part of the European electricity market, and a recent short supply warning from National Grid underscores the risk.

In a bid to prevent blackouts in Northern Ireland in a worse case situation the Government would need to put thousands of generators into place, even as an emergency energy plan has reportedly not gone ahead nationwide, according to the report.

And officials fear they may need to commandeer some generators from the military in such a scenario, the FT reports.

An official was quoted by the newspaper as saying the preparations were “gob-smacking”.

 

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Sens. Wyden, Merkley Introduce Bill to Ensure More Wildfire Resilient Power Grid

Wildfire Resilient Power Grid Act proposes DOE grants for utility companies to fund wildfire mitigation, grid resilience upgrades, undergrounding power lines, fast-tripping protection, weather monitoring, and vegetation management, prioritizing rural electric cooperatives.

 

Key Points

A federal bill funding utility wildfire mitigation and grid hardening via DOE grants, prioritizing rural utilities.

✅ $1B DOE matching grants for grid upgrades and wildfire mitigation.

✅ Prioritizes rural utilities; supports undergrounding and hardening.

✅ Funds fast-tripping protection, weather stations, vegetation management.

 

U.S. Sens. Ron Wyden and Jeff Merkley today introduced new legislation, amid transmission barriers that persist, to incentivize utility companies to do more to reduce wildfire risks as aging power infrastructure ignite wildfires in Oregon and across the West.

Wyden and Merkley's Wildfire Resilient Power Grid Act of 2020 would ensure power companies do their part to reduce the risk of wildfires through power system upgrades, even as California utility spending crackdown seeks accountability, such as the undergrounding of power lines, fire safety equipment installation and proper vegetation management.

"First and foremost, this is a public safety issue. Fire after fire ignited this summer because the aging power grid could not withstand a major windstorm during the season's hottest and driest days," Wyden said. "Many utility companies are already working to improve the resiliency of their power grid, but the sheer costs of these investments must not come at the expense of equitable regulation for rural utility customers. Congress must do all that it can to stop the catastrophic wildfires decimating the West, and that means improving rural infrastructure. By partnering with utilities around the country, we can increase wildfire mitigation efforts at a modest cost -- a fire prevention investment that will pay dividends by saving lives, homes and businesses."

"When this year's unprecedented wildfire event hit, I drove hundreds of miles across our state to see the damage firsthand and to hear directly from impacted communities, so that I could go back to D.C. and work for the solutions they need," said Merkley. "What I saw was apocalyptic--and we have to do everything we can to reduce the risk of this happening again. That means we have to work with our power companies to get critical upgrades and safety investments into place as quickly as possible."

The Wildfire Resilient Power Grid Act of 2020:

* Establishes a $1 billion-per-year matching grant program for power companies through the Department of Energy, even as ACORE opposed DOE subsidy proposals, to reduce the risk of power lines and grid infrastructure causing wildfires.

* Gives special priority to smaller, rural electric companies to ensure mitigation efforts are targeted to forested rural areas.

* Promotes proven methods for reducing wildfire risks, including undergrounding of lines, installing fast-tripping protection systems, and constructing weather monitoring stations to respond to electrical system fire risks.

* Provides for hardening of overhead power lines and installation of fault location equipment where undergrounding of power lines is not a favorable option.

* Ensures fuels management activities of power companies are carried out in accordance with Federal, State, and local laws and regulations.

* Requires power companies to have "skin in the game" by making the program a 1-to-1 matching grant, with an exception for smaller utilities where the matching requirement is one third of the grant.

* Delivers accountability on the part of utilities and the Department of Energy by generating a report every two years on efforts conducted under the grant program.

Portland General Electric President and CEO Maria Pope: "We appreciate Senator Wyden's and Senator Merkley's leadership in proposing legislation to provide federal funding that will help protect Oregon from devastating wildfires. When passed, this will help make Oregon's electric system safer, faster, without increasing customer prices. That is especially important given the economy and hotter, drier summers and longer wildfire seasons that Oregon will continue to face."

Lane County Commission Chair Heather Butch: " In a matter of hours, the entire Lane County community of Blue River was reduced to ashes by the Holiday Farm Fire. Since the moment I first toured that devastation I've been committed to building it back better. I applaud Senators Wyden and Merkley for drafting the Wildfire Resilient Power Grid Act, as it could well provide the path towards meeting this important goal. Moreover, the resultant programs will better protect rural communities from the increasing dangers of wildfires through a number of preventative measures that would otherwise be difficult to implement."

Linn County Commissioner Roger Nyquist: "This legislation is a smart strategic investment for the future safety of our residents as well as the economic vitality of our community."

Marion County Commissioner Kevin Cameron: "After experiencing a traumatic evacuation during the Beachie Creek and Lion's Head wild fires, I understand the need to strengthen the utility Infrastructure. The improvements resulting from Senator Wyden and Merkley's bill will reduce disasters in the future, but improve everyday reliability for our citizens who live, work and protect the environment in potential wildfire areas."

Edison Electric Institute President Tom Kuhn: "EEI thanks Senator Wyden and Senator Merkley for their leadership in introducing the Wildfire Resilient Power Grid Act. This bill will help support and accelerate projects already planned and underway to enhance energy grid resiliency and mitigate the risk of wildfire damage to power lines. Electric companies across the country are committed to working with our government partners and other stakeholders on preparation and mitigation efforts that combat the wildfire threat and on the rapid deployment of technology solutions, including aggregated DERs at FERC, that address wildfire risks, while still maintaining the safe, reliable, and affordable energy we all need."

Oregon Rural Electric Cooperative Association Executive Director Ted Case: "Oregon's electric cooperatives support the Wildfire Resilient Power Grid Act and appreciate Senator Wyden's and Senator Merkley's leadership and innovative approach to wildfire mitigation, particularly for small, rural utilities. This legislation includes targeted assistance that will help us to continue to provide affordable, reliable and safe electricity to over 500,000 Oregonians."

Sustainable Northwest Director of Government Affairs & Program Strategy Dylan Kruse: "In recent years, the West has seen too many wildfires originate due to poorly maintained or damaged electric utility transmission and distribution infrastructure. This legislation plays an important role to ensure that power lines do not contribute to wildfire starts, while providing safe and reliable power to communities during wildfire events. Utilities must, even as Wyoming clean energy bill proposals emerge, live up to their legal requirements to maintain their infrastructure, but this bill provides welcome resources to expedite and prioritize risk reduction, while preventing cost increases for ratepayers."

Oregon Wild Wilderness Program Manager Erik Fernandez: "2020 taught Oregon the lesson that California learned in the Paradise Fire, and SCE wildfire lawsuits that followed underscore the stakes. Addressing the risk of unnaturally caused powerline fires is an increasingly important critical task. I appreciate Senator Ron Wyden's efforts to protect our homes and communities from powerline fires."

 

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Ontario takes constitutional challenge of its global adjustment electricity fee to Supreme Court

Ontario Global Adjustment Supreme Court Appeal spotlights a constitutional challenge to Ontario's electricity charge, pitting National Steel Car against the IESO over regulatory charge vs tax, procurement policy, and renewable energy feed-in tariff contracts.

 

Key Points

An SCC leave bid on whether Ontario's global adjustment is a valid regulatory charge or an unconstitutional tax.

✅ Appeals Court revived case for full record review

✅ Dispute centers on regulatory charge vs tax classification

✅ FIT renewables contracts and procurement policies at issue

 

The Ontario government wants the Supreme Court of Canada to weigh in on a constitutional challenge being brought against a large provincial electricity charge, a case the province claims raises issues of national importance.

Ontario’s attorney general and its Independent Electricity System Operator applied for permission to appeal to the Supreme Court in January, according to the court’s website.

The province is trying to appeal a Court of Appeal decision reinstating the challenge from November that said a legal challenge by Hamilton, Ont.-based National Steel Car Ltd. should be sent back to a lower-court for a full hearing.

Court reinstates constitutional challenge to Ontario's hefty ‘global adjustment’ electricity charge
National Steel Car appealing decision in legal challenge of Ontario electricity fee it calls an unconstitutional tax
Doug Ford’s cancellation of green energy deals costs Ontario taxpayers $231 million
National Steel Car launched its legal challenge in 2017, with the maker of steel rail cars claiming the province’s global adjustment electricity charge was a tax intended to fund certain post-financial-crisis policy goals. Since it is allegedly a tax, and one not imposed by the provincial legislature, the company’s argument is the global adjustment is unconstitutional, and also in breach of a provincial law requiring a referendum for new taxes.

The global adjustment mostly bridges the gap between the province’s hourly electricity price and the price guaranteed under contracts and regulated rates with power generators. It also helps cover the cost of building new electricity infrastructure and providing conservation programs, but the fee now makes up most of the commodity portion of a household power bill in the province.

Ontario argued the global adjustment is a valid regulatory charge, and moved to have National Steel Car’s challenge thrown out. An Ontario Superior Court judge agreed, and dismissed the challenge in 2018, saying it was “plain, obvious and beyond doubt” it could not succeed. However, an appeals court judge disagreed, writing in a decision last November that the “merits should not have been determined on a pleadings motion and without the development of a full record.”

In filings made to the Supreme Court, both the IESO and Ontario’s Ministry of the Attorney General argued their proposed appeals raise “issues of national and public importance,” such as whether incorporating environmental and social policy goals in procurement could turn attempts by a public body to recover costs into an unconstitutional tax.

Most applications for leave to appeal to the Supreme Court are dismissed, but the Ontario government claims the court’s guidance is required in this case, as it could lead to questions being raised about other fees or charges, such as money raised from fishing licences.

“A failure to dispose of this claim at the pleadings stage may well result in such uncertainty that public authorities across Canada decline to incorporate the kind of environmental and social policy goals objected to in this case into the decisions they make about how to spend funds raised from regulatory charges,” the filing from the attorney general states. “Alternatively, it may induce governments not to engage in cost recovery in connection with publicly supplied goods and services, which can otherwise be sound public policy.”

The government has so far had to pay National Steel Car $250,000 in legal costs “to avoid responding to the credible claim that the Global Adjustment is an unconstitutional tax,” said David Trafford of Morse Shannon LLP, one of National Steel Car’s lawyers.

“The application for leave to appeal is the next step in this effort to avoid having to respond to the case on the merits,” Trafford added in an email.

The application for leave to appeal is the next step in this effort to avoid having to respond to the case on the merits

David Trafford of Morse Shannon, one of National Steel Car’s lawyers
 
National Steel Car has particularly taken issue with the part of the global adjustment that funded contracts for renewable energy under a “feed-in tariff” program, or FIT, which the company called “the main culprit behind the dramatic price increases for electricity.”

The FIT program has been ended, but contracts awarded under it remain in place and form part of the global adjustment. Ontario’s auditor general estimated in 2015 that electricity consumers would pay $9.2 billion more for renewable energy under the government’s guaranteed-price program, a figure that later featured in a dispute between the auditor and the electricity regulator that drew political attention.

National Steel Car said its global adjustment costs grew from $207,260 in 2008 to almost $3.4 million in 2016, reflecting how high electricity rates have pressured manufacturers, to almost $3.4 million in 2016. For 2018, there was approximately $11.2 billion in global adjustment collected, according to the IESO’s reporting.

A spokesperson for the IESO said it “is not in a position to comment” because the case is still before the courts.

Electricity prices have been an ongoing problem for both Ontario consumers and politicians, which the previous Liberal government tried to address in 2017 by, among other things, refinancing global-adjustment costs through the Fair Hydro Plan and other measures.

Since National Steel Car filed its lawsuits, though, the Liberals lost power in the province and were succeeded in 2018 by Premier Doug Ford and the Progressive Conservatives, who made changes to the previous government’s power policies, including legislation to lower electricity rates introduced early in their mandate.

The province has also pursued interprovincial power arrangements, including building on an electricity deal with Quebec as part of its broader energy strategy.

“The present government of Ontario does not agree with the former government’s electricity procurement program, which ceased awarding new contracts in 2016,” Ontario’s attorney general said in a filing. “However, Ontario submits that (the lower-court judge) was correct in holding that it does not give rise to a claim susceptible to being remedied by the courts.”

 

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