Supreme Court Justices blast Attorney General for “failure” to represent OGE consumers

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In the Tuesday Oklahoma Supreme Court ruling that upheld the constitutionality of an act allowing utilities to seek ratepayer bonds for 2021 winter storm costs, Attorney General John O’Connor was taken to the wood shed by one Justice for not standing up for the consumers of Oklahoma.

“The utility consumers that the Attorney General should be representing have effectively been left without representation. Their access to counsel lies with the Attorney General. Yet he has failed them.”

Justice Douglas L. Combs wrote in a separate but concurring opinion that he was frustrated about the Attorney General’s lack of participation in Oklahoma Gas and Electric’s bond securitization process from the start at the Corporation Commission to the Supreme Court.

Justice Combs expressed “grave concern” about the Attorney General’s “abdication of his duties to OG&E’s consumers in this action.”

During the utility’s request for a Financing Order to be approved by Corporation Commissioners, O’Connor chose not to participate in the Settlement Agreement reached by OG&E and several of its largest consumers.

“The Attorney General has a statutory duty as ‘the chief law officer of the state…to represent and protect the collective interests of all utility consumers of this state in rate-related proceedings before the Corporation Commission. Yet he shirked this duty in this proceeding…” wrote Justice Combs.

He went on to write that the Attorney General neither subscribed to the Settlement Agreement nor joined the other nonsignatory, the AARP in submitting exceptions to an Administrative Law Judge’s recommendation approving the settlement.

Douglas L. Combs - Ballotpedia

“Thus he never took any position on what amount of OG&E’s extraordinary costs were fair, just, reasonable or prudently incurred. He also failed to litigate other legitimate points raised by Protestants,” continued Justice Combs.

“Had he litigated the amount of OG&E’s extraordinary costs, he would have likely saved those consumers even more money and, better yet, would have engaged the adversarial process so as to reach a more just result.”

Justice Combs wasn’t finished in his criticism of O’Connor and his failures.

“The Attorney General’s desire not to press those issues before the Corporation Commission naturally translated into his failure to file an appeal with this Court,” continued Combs. “Of all people, the attorney General would have been the best party to file such an appeal.”

He also noted that the Attorney General would not have been required to post a nearly $1 billion bond that OG&E would have required of consumers who appealed the Financial Order.

Combs wasn’t finished with O’Connor’s failure to represent OG&E consumers.

“The Attorney General’s failure to file an appeal is ultimately what prevents this Court from reaching the merits issues raised by Protestants,” he added in a continuing string of criticisms of O’Connor.

Justice Combs also pointed out that once the Oklahoma Development Finance Authority filed its application for approval of the bonds in December of last year, Attorney General O’Connor did not file any appearance in the first two months. Not until the Court gave him an opportunity to intervene did O’Connor respond with a Notice of Non-Intervention.

At that point in his opinion, Combs said the lack of action by O’Connor left consumers without representation, stressing that the Attorney General “failed them.”

In concluding his fiery lambasting of O’Connor, the Justice wrote, “The lack of meaningful participation at the settlement stage, the failure to file an appeal of the Corporation Commission’s financing order, and the decision not to intervene in this proceeding leaves this Court with no input from the utility consumers’ statutorily appointed counsel and with few options when it comes to reviewing the ODFA’s application to approve the bonds.”

Justice Dustin Rowe also wrote a brief but separate and concurring opinion in which he too pointed to the Attorney General’s lack of support for consumers in the case. Rowe expressed fears that the Court’s ruling, because there was no representation from the Attorney General might mean the Court’s approval of the bonds “will permanently foreclose the right of any person or entity to challenge the validity of these bonds in the future, even if a meritorious claim arises.”

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He said it was particularly troubling in light of “legitimate questions” raised by the protesters, including the Attorney General’s Notice of Non-Intervention.

“These consequences should not be taken lightly when the effect of our ruling will be to irrevocably saddle many Oklahomans with a significant financial obligation for the next twenty-eight years—and to establish additional precedent for future bond approvals,” said the Justice.

He concluded by stating that despite his misgivings, the court’s statutory mandate under the Act “is limited to ruling upon the constitutionality of the policy, not to supplant the policy with our own.”

Former legislator Mike Reynolds, who filed protests against the bonding request, agreed with the assessment and criticism launched by Justice Combs against Attorney General O’Connor.

“The one thing I conclude from this is that Gov. Stitt should have appointed me as Attorney General instead of O’Connor. I would have certainly stood up for the consumers of OG&E,” he told OK Energy Today.

Reynolds and others who protested the ODFA request raised questions about the failure of the Attorney General to represent the consumers of the state, a failure reaching from the Corporation Commission to the Supreme Court. What they were left with is the knowledge that at least

Obviously disappointed at the entire ruling of the Supreme Court, Reynolds hinted at a possible appeal of the decision. He took note that the decision by the Court focused only on the bonding request of ODFA on behalf of Oklahoma Gas and Electric and not specifically on his constitutional challenge of the matter.

But that also left him without much hope of winning in his separate protest.

“But—this thing isn’t over.”

Click below to view Justice Combs’ separate but concurring opinion


Click below to view Justice Rowe’s opinion