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Judge gives clean energy initiative the go-ahead for ballot

An aerial view of the Palo Verde Nuclear Generation Station near Tonopah. Arizona Public Service contends the station may need to shut down if the clean energy initiative passes. (Cuhlik photo)

An aerial view of the Palo Verde Nuclear Generation Station near Tonopah. Arizona Public Service contends the station may need to shut down if the clean energy initiative passes. (Cuhlik photo)

PHOENIX – Arizona Public Service has faltered in its attempt to keep a renewable energy measure it opposes off the November ballot.

In a 33-page ruling, Maricopa County Superior Court Judge Daniel Kiley rejected the contentions of the APS-funded group that backers of the Clean Energy for Healthy Arizona initiative had effectively tricked people into signing initiative petitions.

During a five-day trial, they pointed out that the proposal, requiring utilities to generate 50 percent of their power from renewable source by 2030, specifically uses the term “clean energy.’’ But attorneys for the utility noted that Proposition 127 would not include nuclear power in that 50 percent mandate.

They contend that nuclear power is “clean’’ energy because it does not produce airborne emissions. And in using that term, they said, it may have fooled petition signers into thinking the measure does something it does not.

Kiley, however, said no one was misled.

“The fact that the initiative excludes nuclear power is made clear,’’ he said, not only in the title of the measure but also in the 100-word summary on each petition and in the actual text of the measure. There, he said, it defines “renewable energy’’ as excluding nuclear or fossil fuels.

But Kiley sidestepped the question of whether nuclear is “clean,’’ saying that is not for courts to decide.

The judge did disqualify a large number of the more than 480,000 signatures that were submitted by initiative organizers.

In some cases he found evidence of fraud, such as multiple names on the same petition sheet that seem to have been signed by the same person. And Kiley also said that the signatures of circulators who did not show up in court after being subpoenaed also had to be tossed out.

But the judge rejected the key contention of the utility-financed effort that initiative organizers knew that more than half the signatures they submitted were invalid. That claim was based on an internal review by campaign workers that they could verify just 47.3 percent of the signatures they had in hand.

Utility attorney Brett Johnson told Kiley that proves the campaign knew they were submitting invalid signatures in hopes that turning that many petitions in to election officials would “flood’’ the system and leave them unable to properly verify the signatures.

Kiley said that internal analysis proves no such thing.

He said that validity rates in that analysis was “intended as a conservative, ‘worst case scenario’-type estimate’’ to get a baseline idea of what the committee knew it could prove in a challenge. He said it was never meant to be an estimate of the signatures organizers believed to actually be valid.

For example, the judge said, the campaign committee, to be on the safe side, did not count any signature as “valid’’ where the address on the petition did not match the voter registration records.

“This is an unrealistically pessimistic assumption,’’ Kiley wrote. He pointed out that the county recorders, who actually checked a random sample of signatures, were able to find and validate many of them despite the fact that the addresses on the petitions did not match voter records.

He also slapped down the idea that the campaign committee’s own internal records and analysis should somehow govern his ruling.

“The relevant issue is whether the signatures submitted by the committee are valid,’’ Kiley said. “What the committee’s personnel (or any other party or employee of a party, for that matter) thinks or believes about the validity of those signatures is irrelevant.’’

And there’s something else. Kiley said that even if he accepted the committee’s own validity rate, it would not matter: It still would leave the campaign with more than the 225,963 valid signatures needed to make the ballot.

None of that, however, is going to stop Arizonans for Affordable Energy, the group set up by APS and its parent, Pinnacle West Capital Corp., from making a last-ditch effort to keep the issue from going to voters. Campaign spokesman Matthew Benson said an appeal is being prepared to the Arizona Supreme Court.

In fact, Benson said in a prepared statement that his organization is doubling down on the claim – the one that Kiley just rejected – that the internal analysis done by initiative organizers of the petitions should be proof there are insufficient valid signatures.

That decision to appeal is not a surprise. APS and Pinnacle West already have spent nearly $10.4 million in the effort to quash the initiative and its mandate.

APS, like most other Arizona utilities, is under a directive from the Arizona Corporation Commission to generate 15 percent of its power from renewable sources by 2025.

This measure, financed by California billionaire Tom Steyer, would not only override the rules of the utility regulators but actually put that 50 percent mandate into the Arizona Constitution. Steyer’s NextGen Climate Action already has spent more than $8.8 million to put the issue to voters in November.

APS contends that a 50 percent renewable mandate would raise utility bills and could even force the closure of the Palo Verde Nuclear Generating Station as its power would not be needed during peak solar hours. Foes have their own economic impact projections and reject the idea that the future of the power plant west of Phoenix will be affected solely by this measure.