4 days ago
NorthWestern Energy tries to exclude climate change witness as ‘expert' in rate case
The Laurel Generation Station power plant in Laurel Montana as seen in September 2023. (Aerial photography by Ed Saunders)
NorthWestern Energy, the state's largest public utility, tried to stop an energy engineer who planned to testify about climate change from participating in a rate case as an expert witness.
It also attempted to curtail testimony based on an Intergovernmental Panel on Climate Change report.
The monopoly utility argued some of the testimony was an attempt to introduce 'inadmissible hearsay and exhibits,' such as the IPCC report.
The IPCC is an international United Nations body set up to assess science related to climate with 195 members.
The utility also said the energy engineer sought to offer 'improper legal opinions as a nonlawyer' and requested the Montana Public Service Commission strike that testimony.
On a 3-2 vote Tuesday, the Montana Public Service Commission supported a staff recommendation to allow the engineer, with the Montana Environmental Information Center, to testify as an expert witness.
But the PSC agreed he could not offer legal conclusions, as also recommended in the draft order from staff.
A minority on the commission tried to block expert testimony from the witness.
The order to allow the engineer to testify as an expert happened when PSC President Brad Molnar urged the commission to avoid a double standard and treat the witness fairly.
The PSC is all Republican, and Molnar said if the commission determined the MEIC witness wasn't an expert, a future commission with a different political makeup could use the same rationale to disqualify witnesses for NorthWestern Energy.
He also said the commission will have the ability to test the engineer's testimony.
'If there is one golden nugget in there, either substantiated by cross examination or refuted by cross examination, it has been worthy of our time,' Molnar said.
Molnar also said the argument to silence the engineer was not based in fact.
'What we have is a desire to stop one person from testifying because one other moving party (NorthWestern) in this soon-to-be drama doesn't want people to hear what he has to say,' Molnar said. 'And I can't go with that.'
The dispute is one small debate in another rate case filed by NorthWestern Energy and already drawing scrutiny after a 2023 settlement the PSC approved that hiked electric bills nearly 28%.
Montanans have been fighting about the effects of climate change in different political arenas, including at the utility regulatory agency.
The witness whom NorthWestern tried to block, Nick Fitzmaurice of the Montana Environmental Information Center, said in written pre-filed testimony the utility has 'neglected to account' for risks that climate change poses to its operations and credit.
'Corporate analysts have specifically and repeatedly noted that 'climate change' creates multiple risks for NorthWestern Energy,' Fitzmaurice said in part of his testimony. 'Moody's identified climate change as posing multiple risks to NorthWestern Energy.'
Attempts to cull and curate witness testimony in cases aren't new, but the debate this week shows the pending rate case as another battleground over the role played by climate change in energy costs.
In an email to the Daily Montanan, NorthWestern spokesperson Jo Dee Black said the utility was not attempting to disallow information in the case.
'This motion was made not to limit an issue or topic but to ensure the professional standards for qualification as an expert witness were upheld,' Black said. 'NorthWestern did not have any issues with this witness testifying as a lay or fact witness.'
However, Anne Hedges, with the Montana Environmental Information Center, said NorthWestern admits it doesn't employ any scientific expert on climate change itself.
Hedges said it's disingenuous for the utility to try to bill customers for climate impacts such as wildfire yet try to stifle the person giving testimony about climate change.
'Not having testimony means the commission can't consider climate change at all, and that is exactly what they want,' Hedges said of NorthWestern. 'So good for Brad Molnar. Good for the commission.'
In its motion, NorthWestern called on the PSC to strike 'irrelevant evidence' from Fitzmaurice, energy transition engineer for the MEIC.
Fitzmaurice holds a bachelor's degree in industrial management systems engineering from Montana State University and has worked in energy policy and modeling, according to his MEIC biography.
The utility tried to exclude his statements about its emissions and the economic impacts of climate change in Montana, and it tried to exclude testimony from Kyle Unruh of Renewable Northwest.
NorthWestern also disputed Fitzmaurice as an expert witness — experts are allowed to rely on reports, or 'hearsay' not personally experienced, to explain their opinions.
NorthWestern, though, said Fitzmaurice should only be allowed to testify as a 'lay witness' — meaning he could testify only from personal experience, which would exclude testimony based on an IPCC report.
Witnesses in rate cases file written testimony in advance of hearings.
At the meeting this week, PSC legal counsel Lucas Hamilton said staff found some of the testimony Fitzmaurice provided to be 'impermissible legal conclusions' more appropriately submitted later on in the case.
However, Hamilton said staff recommended finding Fitzmaurice's testimony relevant, contrary to NorthWestern's motion, although he said its credibility would be up to the commission to determine.
Before the PSC approved the recommended order from staff, Commissioner Annie Bukacek moved to disqualify Fitzmaurice, with support from Commissioner Jennifer Fielder.
Bukacek said Fitzmaurice 'has not done enough actual work' in his field, and she had yet to meet an 'expert in climatology or energy policy' who didn't have a doctorate degree.
'Standards matter in any field that provides critical information, such as energy policy,' Bukacek said.
In response to a question, however, Hamilton said without a point of reference from the parties, the standard for qualifying a person as 'an expert' within the field of energy policy is discretionary.
In the meantime, he said, the Montana rules of evidence call for a liberal interpretation of who is an expert — and allow an expert's testimony to be scrutinized.
PSC staff attorney Amanda Webster said if the PSC deemed Fitzmaurice a 'lay witness' as opposed to an expert, it would 'effectively preclude him' from testifying altogether.
'There wouldn't be much left of his testimony,' Webster said.
The move to oust Fitzmaurice from the list of experts failed, with only Bukacek and Fielder in support. Commissioners Randy Pinocci and Jeff Welborn supported Molnar's move to adopt the draft order prepared by staff.
Pinocci said he didn't want a disqualification by the PSC to lead to a costly lawsuit alleging the commission had drawn an improper conclusion about an expert.
Unruh, with Renewable NorthWest, declined to comment beyond his written testimony. The order from the PSC denied NorthWestern's move to strike his remarks.
Relying in part on an IPCC report, Unruh argues NorthWestern is putting Montana ratepayers at 'substantial economic risk' and 'regulatory risk' by ignoring the effects of greenhouse gas emissions.
But Hedges, with the MEIC, said NorthWestern Energy has become more bullish, and the rate case is demonstrating 'their new aggressive position toward the commission and toward customers.'
