California - Comment to the FPPC

August 10, 2010

Fair Political Practices Commission
428 J Street, Suite 800
Sacramento, CA 95814

via fax: 916-322-6440

re: Agenda Item #1, August 12, 2010

Dear Chairman and Commissioners:

I will be brief.  This is not on the agenda and I will be happy to return again when it is.

My name is Jim Rothstein; I have no affiliation.  I came to Sacramento 5 months ago because California and Jiangsu Province, China signed an excellent energy cooperation agreement (MOU) in October 2009.   I came because I was eager to observe and perhaps participate as a citizen in its implementation.   (I lived in China for 6 years.)  

For my efforts - on my dime, I basically got nothing:  not a 'yes',  not a 'no', just a kind of undefinable, muddled 'mush'.

I  then did the natural thing:  I began to scratch; I began to use some of the available tools available to the public  - some of which you provide.   

This is why I am here today.

Some of what I found - using FPPC tools and other tools (CPRA) - include:

(Note: I will file a detailed complaint with FPPC Enforcement.  This is not my purpose today.)

• Meetings and numerous state-organized groups, some raising money and others drafting implementation or policy, that I could not attend or join.     I found evasive answers ('You can call it a program, or a policy initiative.') when I asked about open meeting laws.

• Private groups paying for official trips to China, some 'mission critical', for regulators, legislators - together with investment bankers, California business people.     Lots of taxi receipts - but no one could tell me where they were going or meeting.   No one could verify the 'mission critical' guarantees were actually met.  And, Form 700 merely disclose a US 501(c)3 with a Beijing address, completely obscuring whether or not the payment originated from a  US or foreign entity.  It is a secret even who joined on these trips!

• The same 501(c)3 then seems to have regular, private access to regulators and legislators.  The group can even help pay for Energy Commissioner James  Boyd, requested by Linda Adams of CalEPA - per public records, to travel to China to help close a ('mission critical' ?) business deal between two Chinese companies.  Then the same NGO can bring one of the Chinese state-owned  companies to Sacramento!   But to see the photograph, however, you have to visit a Chinese website.   So much for any prior beliefs you may have had about transparency.
  
• And I found State agencies who miss no opportunity to delay, obscure, confuse, ignore, even belittle.   I found agencies so determined not to any release anything that might add to a growing list of doubts, dots and questions - or worse, inform the public - that laws appear to be negotiable.  

(Again, I will file a complaint - separate from today.)

The reason I am here today is that I found the tools you provide inadequate to answer the most basic of questions:   What is the role of these NGOs in implementing the California-Jiangsu MOU?   (Or, the original way:   What is the status of MOU implementation?  Or: Why are there so many other seemingly unrelated activities going on?)

"Disclosure" is not the same thing as comprehension or  allowing public oversight. 

Unfortunately, with your tools, I have found that a summer associate - not yet a lawyer - can easily outmaneuver me.   And it is not just me -  I sure you have noted that the Sacramento Bee's articles about China travel do not cover all the China trips, all the 501(c)3 or all the questions about the subsequent role these groups play in Sacramento - or who is behind them.

I urge to you cut off the private funding of trips and make the rules clear, easy and fair.   And, if a private group - after paying its fair share of taxes - feels it has extra money to donate to the State then please do allow them, but the  State must select the best use - in a transparent process, which  exceeds Form 801 or Governor's vague 'mission critical' requirement .   

And always verify.

I am happy to discuss any item in detail.

Thank you for your time.

Jim Rothstein

jimrothstein@gmail.com

831-824-4304

California - Letter submitted to Sacramento Bee

I submitted this letter to the editor (Sacramento Bee; 200 word limit).

To the Editor:

Tom Knudson of the Bee has done a good job  reporting  free trips to China legislators and regulators, paid by private, non-profit money (Sacramento Bee, 7/26/09 , http://www.sacbee.com/2009/07/26/2056375/energy-firms-help-pay-for-state.html; Public Eye, July 7, 2010; http://blogs.sacbee.com/the-public-eye/2010/07/by-law-corporations-are-forbidden.html). 

But there is more. 

Out of public view, State regulators continue to play an active role in brokering a 500 MW solar (PV) deal in California between two Chinese companies, proposing a California exhibition hall in China, selecting China  projects and industrial alliances, and hiding their own role with  the non-profit that has been involved in numerous activities, including paying for Linda Adams to visit China.

Charged with implementing the 'landmark', 'subnational' energy agreement between California and Jiangsu Province, one of China's industrial powerhouses, our State regulators should be working - transparently  - toward wise energy policies that leverage the best of California's leadership, resources and innovation together with China's ability to drive down market prices by low-cost manufacturing. benefit both countries. 

Instead, State agencies,  response to questions asked nicely or formally with answers so muddled and misleading - if at all  - that it is easier to find out about California's activities from Chinese websites (which have the photographs!) We keep hearing that China is not transparent.   Maybe it time to enforce our own transparency laws - the public's right to know, so well stated in the Bee's July 4 editorial about the Freedom of Information Act.

China Tops US in Energy Use - IEA

China became the world's largest consumer of energy, passing the US in 2009, according to calculations done by the International Energy Agency

The Chinese National Energy Administration (link) disputed the calculation, asserting the calculations are in error, and though China may become the largest producer, it is not the largest user.  The Paris-based IEA stands by its data. 

The IEA estimates that in 2009 China used 2.252 billion tons of oil equivalent, a measure of the total energy used - from oil, coal, renewables and all energy sources - while the US used 4% less.  However, on a per capita basis, the average American still uses far more energy than the average Chinese.

In response to a question asked at an energy policy seminar in Sacramento, Lynn Price, a senior researcher at the China Energy Group at Lawrence Berkeley Lab said, "It does not matter whether China passed the US this year or last year or next year but that China's energy use is growing extremely rapidly."

Indeed, in 2000 China's energy use was only half that of the US.   But in the last decade, the US energy use grew slowly, declining since 2008, while China energy use has continued to grow rapidly and now matches the US.

Even if the exact timing is not important, the significance may be a harbinger.    The US passed the UK in energy use 100 years ago and went on to become the leading economic power of the 20th century.

China's rapid increase in energy use has already had ramifications in world energy markets, diplomacy and seemingly mundane issues like the positioning of international pipelines.

Yet China may not welcome the scruntiny and possible responsiblies of being the leading energy consumer.   The IEA has often complained about the ambiguity in Chinese energy data.   China, for its part, prefers to emphasize its energy efficiency or green energy policies.  

Whatever the issue at the moment, a natural question might be,  given China's voracious and growing energy appetite, just how high can its energy use go?   

In the next 15 years, China may expand its energy production by an amount equal to half of what the US consumes today.   China may eventually have a fifth of the world's population, but consume a quarter of the world's energy

As much as China works to be green and energy-efficient, including higher auto fuel efficiency standards than in the US,  its citizens also want to have simple modern conveniences, which means more energy.

July 18, 2010
http://online.wsj.com/article/SB10001424052748703720504575376712353150310.html

July 21, 2010 (China disputes IEA)

http://online.wsj.com/article/SB10001424052748703720504575378243321158992.html

July 4, 2010

http://www.nytimes.com/2010/07/05/business/global/05warmside.html

California/EPA - "Please refrain" - California Public Records Act

CalEPA and ARB continue to avoid releasing public records related to China.   They rarely claim specific exemption, but find other ways to prevent the disclosure that we are all entitled to see.  This is my response to recent request to "refrain" and my reasons.

[Update:  Visited CalEPA/ARB, no "files available" - no Form 700s, no documents since last inspection on June 8, 2010. Full list.]

July 7, 2010

Dear Mr. Llerandi , Mr. Koyasko, Ms. Barron:

cc: Clerk of the ARB Board (to supplement June request)

Your  advice of July 6, 2010 is inappropriate:

"We advise that you please refrain from further PRA requests until the multiple requests that you have thus far submitted are answered so as to avoid future issues."

The reason is that you - Cal/EPA, ARB, C3 ( plus various entities created for China projects)  - are not complying with California Public Records Act.

Moreover, you continue to hold discussions and meetings regarding China without public participation or disclosure - for example May private discussions and meetings with iCET and a Chinese company that wants to put a 500 MW solar farm in California.

And you have shown bad faith:  Mr. Koyasako's email to Judy Stoulil, marked "Confidential" and "High" importance "I don't think I can put him off much longer."  (You took it back and I asked you not to destroy the paper.)


I do not appreciate your unilateral attempts to weaken or circumvent a very important law.

Trust, but Verify

At the last ARB Board meeting, Ms. Nichols spoke about 'trust, but verify' philosophy.   Today, I will be at CalEPA/ARB after lunch also to  'verify,' as is the public's right - even responsibility - under the CPRA.

As you know, the CPRA is based on the federal Freedom of Information Act (FOIA), which was lauded in a July 4th Sacramento Bee editorial.

CPRA is but one way for the public to understand its government. As I have explained before, I know 3 ways for the public to gain an understanding of State government's multiple efforts with China, including  the California-Jiangsu MOU:

(a) open, public, transparent government with public participation
(b) have public officials keep the public readily informed
(c) the California Public Records Act

I vote for (a).  But the public was excluded from discussions with CalEPA's C3 : California-China Clean Tech Initiative, and the development of the Working Plan for the Jiangsu-California MOU, as two examples.

I also tried (b) by personally asking Susan Kennedy (Govenor's Office), Dian Grueneich (CPUC), Margret Kim (ARB) for information in early March, plus the ARB Board and Energy Commission - but got few replies.

So your agencies have left the public with (c) as the only option.   This was your choice.

Under CPRA,  like the FOIA, the burden is on you - the agency, as it is even in recent, effective laws in India, which provides stiff fines to those for failure to comply.
"Promptly"

The CPRA calls upon you to "promptly" make public records available.  In previous emails you asserted, more than once, a right to delay.  But you gave no reply when I asked for a court case or rule.

In Mr. Koyasakao's June   23, 2010 email, which I pointed out issues and inconsistencies, especially about iCET and April California delegations to China, he neither replied nor released records.   


Bottom line: an accumulating a set of data which  illustrate you are using a variety of ways merely to delay.

More Questions

As long as you continue to operate without public participation and transparency, the public can issue CPRA requests.  As long as private groups like iCET can pay for regulators to travel to China and participate in business matters affecting California (and Linda Adams can ask regulators to travel, and the Governor's office approve such travel), the public can file CPRA requests.  And, as long as you fail to answer concerns - such as June Koyasako letter - you will only get more requests.

Of course, your agencies could  decide on option (a) and always operate transparently and thus mitigate some of the imperative for CPRA, though we always will need to verify.. 


Otherwise, I see no such restraint on the public to "refrain" under the law - especially as new developments occur, even if each request creates a 'burden' and mutliple requests create multiple 'burdens' for you. 


And yet, you do have a simple and quick remedy for your burdens:  release all the records now. Done.

If you do not agree, use the courts to show your self-imposed 'burdens' are of higher importance than the public's right to know and to know 'promptly.'  


However, even Ms. Kim  - one of the people at the center of the State's work in China - believes in open government  

"... it was not until I actually got involved in China, that I really got to realize the true value and appreciate our open government system."

I will  inspect the records after lunch today.  I reject your attempts to weaken CPRA and your efforts to create delay.

Thank you.

Jim Rothstein