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1:14 AM Sun, Nov. 18th

Attorney: Toss clean energy initiative due to no sponsoring organizaton

The state’s largest utility is arguing that the initiative to require half of all electricity by 2030 should be tossed because petition signers did not know the initiative was sponsored by a California billionaire. (Daily Miner file photo)

The state’s largest utility is arguing that the initiative to require half of all electricity by 2030 should be tossed because petition signers did not know the initiative was sponsored by a California billionaire. (Daily Miner file photo)

PHOENIX – The attorney for the state’s largest utility said Monday that Arizonans should be precluded from voting on a renewable energy mandate because they were not told when signing petitions that a California billionaire is behind the measure.

Brett Johnson told Maricopa County Superior Court Judge Daniel Kiley that Arizona law specifically requires that initiative petitions list the sponsoring organization. He said that’s more than a procedural requirement.

“What if it is an offensive group that is trying to logroll a situation through the state of Arizona?’’ Johnson asked. And what, he said, if that name would turn off voters?

“So, instead, they come up with a flowery organization name that has been marketed all over the country and the communications people say, ‘If you use this name, we’ll be able to logroll this initiative through,’’’ he said.

Johnson told Kiley that’s precisely what happened here.

He said the initiative to mandate that half of all electricity produced in Arizona by 2030 be produced from renewable sources initially listed no sponsoring organization when the paperwork was filed in February to begin circulating petitions. Only later was Clean Energy for a Healthy Arizona established as a limited liability company and listed as a sponsor.

But Johnson argued to Kiley that’s not good enough.

He contends that NextGen Climate Action is the true sponsor and should have been listed on petitions as such. He said that organization, a political action committee run by California billionaire Tom Steyer, provided the resources first to set up the committee and has provided all but about $318 of the nearly $4.5 million to collect the signatures and put the measure on the November ballot.

More to the point, Johnson said the failure to list the sponsoring organization means that none of the more than 480,000 signatures collected are valid.

But Jim Barton, representing initiative organizers, told Kiley that Johnson is off base.

He said no one has attempted to hide the involvement of NextGen.

A public report filed in April, while signatures were still being gathered, shows that NextGen by that point had put in $750,000 in cash and more than $200,000 in “in-kind’’ contributions, including paying for petition circulators as well as staffing and overhead for the Arizona committee. The latest report, filed earlier this month – after the deadline for submitting petitions – put NextGen’s total at $4.46 million.

But Barton said being the prime source of the dollars does not equate to being the sponsor of the ballot measure, at least not as defined under Arizona election law. He told Kiley that adopting Johnson’s argument would mean that the failure to list each and every donor as the sponsor would disqualify measures from the ballot.

Hanging in the balance is whether voters get a say on the matter.

Pinnacle West Capital Corp., the parent company of Arizona Public Service, is financing the effort to keep the measure off the November ballot. So far the company has put more than $7.5 million into Arizonans for Affordable Energy, the campaign organization it formed, to quash the initiative.

Officials of the company contend that the proposal is not financially sound and that forcing utilities to generate half their power from renewable sources by 2030 will result in higher rates. They also say it could endanger the future of the Palo Verde Nuclear Generating Station as the definition of “renewable’’ does not include nuclear power.

Both arguments are disputed by initiative organizers.

Johnson told Kiley there’s nothing legally wrong with NextGen coming in to help set up and administer the initiative committee – as long as that’s disclosed up front.

“The trade-off is the public becomes aware that there’s an organization from California named NextGen that’s coming into Arizona and bringing policies and laws into our constitution that are at issue,’’ he said.

“The public can make a determination, ‘What is this NextGen?’’’ he continued, allowing voters to research the organization and decide “is this something I want to support just from a facial understanding of the organization.’’

Johnson and Pinnacle West are not relying solely on the technical question of the failure to list NextGen as the sponsor to keep the issue off the ballot.

The challengers also contend that about 379,000 of the signatures are invalid for one reason or another, ranging from claims that the signers were not registered – or at least that the names and addresses don’t match – to whether some of the petitions were circulated by felons who cannot legally collect initiative signatures in Arizona.

Andrew Smiegowski, another attorney for Pinnacle West, wants Kiley to order county recorders to check each and every one of the challenged signatures.

But Jason Moore, representing Navajo County, told the judge that’s not only impractical but also beyond what the law allows.

Moore pointed out that Arizona law requires counties to verify a random sample of 5 percent of signatures collected. And he said if the error rate is as high as Smiegowski contends, then that will show up in the sampling and the measure won’t make the ballot.

Kiley is expected to rule within days whether he will allow the challenge to the petitions to proceed to a full-blown trial.