First Amendment battle pits Philadelphia Gas Works against climate advocates in rate hike case

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A First Amendment battle is brewing between Philadelphia Gas Works and a coalition of climate activists who say the utility is retaliating against them for actively participating in an ongoing ratemaking case.

The issue centers around the coalition opposing PGW’s proposed rate hike of 13%, a case that is currently before the Pennsylvania Public Utility Commission.

Typically, participating groups in a utility’s ratemaking case include the Public Advocate, as well as those who oppose rate hikes based solely on costs to the consumer. But this time, a coalition of seven environmental and climate advocacy groups known as the Energy Justice Advocates has entered the legal process as an “intervenor,” or a party to the case.

The coalition says the city-owned utility’s lack of action on climate change contributes to the need to increase rates, and its members have asked the PUC to reject the utility’s proposed rate hikes and order the gas provider to adjust its business model to address its role in the growing climate crisis.

Parties to ratemaking cases, as in other legal procedures, can ask for information from the utility, and vice versa. The purpose is to gain information to make their case, or defend it.

Philly climate groups say First Amendment rights could be trampled

The utility has asked the PUC to force the Energy Justice Advocates, which includes nonprofit advocates POWER Interfaith, Sierra Club, Physicians for Social Responsibility Pennsylvania, Clean Air Council, Vote Solar, PennEnvironment and the Pennsylvania Public Interest Research Group, to turn over internal communications — emails, texts and memos — that document strategies about fighting the rate hike. PGW also wants the group’s internal communications about participation in public hearings.

The climate coalition, which is represented by attorney Devin McDougall of Earthjustice, has objected on a number of grounds, including irrelevance, attorney client privilege and First Amendment violations of freedom of expression and freedom of assembly.

In his response to PGW’s initial request, McDougall wrote, “ … if the public interest organizations comprising EJA [Energy Justice Advocates] are forced to turn over such highly sensitive internal documents as a condition for participating in Commission proceedings, this will cause significant harm to their ability to have free and open internal discussions and will have a chilling effect on the willingness of public interest organizations to participate in Commission proceedings in the future.”

Philadelphia Gas Works says it is seeking facts for rate hike case

PGW, which is represented by Renardo Hicks, who formerly served as chief counsel for the PUC, told the court the utility’s requests are reasonable and it is seeking facts behind the Energy Justice Advocates’ public statements, as well as court filings. In particular, PGW’s request points to an essay by POWER Interfaith member Pamela Darville published in May in PA Environment Digest, “Doubling Down On Pennsylvania’s Fossil Fuel Extraction Is A Direct Threat To Public Health And Ecological Stability.”

“EJA’s attempts to wrap itself in the protection of the First Amendment is misplaced and should be rejected,” PGW wrote in its request to the PUC.

PGW spokesman Dan Gross said the utility had no comment on the litigation. “The matter is being handled in accordance with all applicable laws through the appropriate legal process established for utility rate cases in Pennsylvania,” Gross wrote in an email.

‘Raising the price of admission’

But speaking at a City Council budget hearing last week, where PGW’s capital budget was up for review by the finance committee, several Energy Justice Advocates activists asked council members for support, calling PGW’s information requests “aggressive.”

“We’re asking the Public Utility Commission to mandate a new kind of long-term planning to bring PGW’s budgets, investments and business plans into line with the city’s climate goals and the changing energy marketplaces,” said Mitch Chanin, a member of POWER Interfaith. “PGW’s lawyers are being extremely hostile and aggressive towards organizations representing the public who are trying to take part in this process by demanding that we provide private information, meeting notes, strategy, internal emails, information about our members. None of that is necessary. I regard that as a hostile attack on public participation.”

Federal courts have rejected government agencies’ attempts to seek internal communications on a number of occasions, according to Seth Kreimer, who teaches First Amendment law at the University of Pennsylvania’s Carey Law School.

“It looks to me like what PGW is doing here is trying to harass interveners by filing these requests for information that seem to be of quite limited relevance but will take time and effort to respond to,” Kreimer said.

Kreimer said the reason courts have rejected these types of requests is because it could make future groups or individuals hesitant to participate in public proceedings — like the rate hike case.

“They kind of raise the price of admission to the proceeding by forcing lawyers for the intervenors to spend time litigating these sorts of requests,” he said.

Temple University law professor Laura Little, who has represented news organizations in First Amendment cases, said a good reason for the request could override the First Amendment.

“The Supreme Court has said that if the government has a sufficiently good reason … for intruding on this privacy and association right, then it can be constitutional,” Little said.