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Attorney General Herring treads gently on Dominion rate bill
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Attorney General Herring treads gently on Dominion rate bill

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Virginia Attorney General Mark Herring greets people during the State of the Commonwealth Address on Wednesday Jan. 10, 2018.

Virginia Attorney General Mark Herring isn’t shy about opining on such issues as bump stocks, net neutrality or President Donald Trump’s travel bans.

But he’s taking a quieter public approach on one of the most controversial issues in this year’s General Assembly session: electricity rates. Consumer advocates such as the Virginia Poverty Law Center worry that the legislature might chart a course saddling customers with potentially billions of dollars in costs as lawmakers debate regulation of Dominion Energy and Appalachian Power Co., the state’s large, regulated electricity monopolies.

Former Republican Attorney General Ken Cuccinelli, who is now president of the Senate Conservatives Fund, which seeks to elect conservatives to the U.S. Senate, criticized Herring for not being more outspoken about the Dominion-friendly legislation. He accused Herring of “playing both sides of the fence.”

But Herring spokesman Michael Kelly rejected the criticism, saying the office is involved in ongoing discussions with stakeholders to address problems in the bill.

“AG Herring has high-level folks from his team involved in those discussions, and he and the Governor personally discussed the issue during a meeting today,” Kelly said by email.

State lawmakers are considering how and whether to undo a controversial 2015 law that limited the ability of the SCC to set base electricity rates and order refunds to customers if the utilities earned more than the agreed-upon profit.

The SCC issued a report Monday saying the Dominion-backed plan would keep customers from getting any refunds for at least six years, make it more difficult for the SCC to lower base electricity rates, and potentially result in billions in additional costs to ratepayers.

The bills are now being amended.

Gov. Ralph Northam said last week that he has “significant concerns” about the legislation.

“The biggest 800-pound gorilla in the utility debate is the AG’s office,” Cuccinelli said. “It’s not the governor’s office. Because the AG is charged with protecting consumers.”

Herring has not made any public statements about the electricity legislation, but in response to a Richmond Times-Dispatch inquiry about Herring’s position on the legislation, Kelly emailed to say the attorney general has concerns.

“Attorney General Herring opposed the (2015) rate freeze from the very beginning and has continued to support its repeal. He believes the SCC should have the authority to review rates and he should have the opportunity to advocate for the lowest bills possible for customers,” Kelly wrote in the email.

“While the bill has some worthwhile components like grid modernization and promotion of renewable energy, Virginia could move the ball forward on those while also allowing the SCC to ensure fair rates. As introduced, the bill would allow power companies to keep excess profits by locking in rates the SCC has already said are too high, and would shield significant portions of electric utilities’ operations from adequate regulation.”

In his first term, Herring was considered a potential candidate for governor but opted to run for re-election, clearing a path for then-Lt. Gov. Northam to run for governor.

Herring’s Republican opponent last year, John Adams, who works for McGuireWoods — Dominion’s law firm — did not campaign on the issue of electricity rates.

Herring, his PAC and his inaugural committee have received $134,500 in campaign contributions from Dominion Energy, according to the Virginia Public Access Project.

Herring has had just one in-person meeting with Dominion CEO Tom Farrell — in Herring’s office on Nov. 24, 2015 — since becoming attorney general, according to Kelly. That meeting was at Herring’s request.

This year, Herring’s office backed a bill from Sen. Chap Petersen, D-Fairfax City, to undo the 2015 law. The bill was killed on a 13-1 vote during the first meeting of the Senate Commerce and Labor Committee on Jan. 15.

“He has fought utility companies at the SCC and won many times, including in the last rate review cases for both Dominion and APCo,” Kelly said.

Andy Miller, who was a Democratic attorney general in Virginia from 1970 to 1977 and persuaded the General Assembly to create the Consumer Counsel division within the Attorney General’s Office, said Herring should not have defended the 2015 law. The law was upheld last year by the Supreme Court of Virginia.

“He refused to advocate on behalf of consumers,” Miller said.

Miller said it’s time for a constitutional amendment “to make unambiguously clear the attorney general’s duty to advocate for consumers and the State Corporation Commission’s authority over utility rates.”

Herring also has largely stayed away from one of the most controversial environmental issues in Virginia, the Dominion Energy-led Atlantic Coast Pipeline, which is advancing toward construction.

In August, an environmental group registered a formal complaint with Herring over how the Virginia Department of Environmental Quality has handled the water-quality certification process for the pipeline and another contentious natural gas project, the Mountain Valley Pipeline.

The Blue Ridge Environmental Defense League argued that the DEQ was shirking its responsibilities to protect state waters from the pipelines’ construction by giving up its authority to review the hundreds of spots where they would cross waterways.

The group says it never got an answer from Herring.

The Attorney General’s Office also was copied on an October letter to the State Water Control Board — which approved water certifications for both pipeline projects in December — from three environmental groups that argued the DEQ’s proposed certifications for the projects were legally fraught.

Just before the marathon and contentious water board meetings, Kelly was asked whether Herring supported the pipeline projects and whether the DEQ’s actions were legally defensible.

“He believes these decisions are best made by knowledgeable and capable professional staff and citizen boards after a thorough and rigorous review,” said Kelly, adding that any advice provided to the board or DEQ was subject to attorney-client privilege.

pwilson@timesdispatch.com

(804) 649-6061

Twitter: @patrickmwilson

Staff writer Robert Zullo contributed to this report.

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