20201119Response to Suez Motion.pdf

;:iri-tilivflil
r::x FJ:ij t9 PH 2, ?0
KEN NAGY (I.S.B. No. 6176)
ATTORNEY AT LAW
P.O. Box 164
Lewiston, Idaho 83501
Telephone: [phone]
Facsimile: (888) 291 -3832
E -mail : V,nagy @lewiston. com
ATTORNEY FOR INTERVENOR
IN THE MATTER OF SUEZ WATER
IDAHO INC.'S APPLICATION FOR
AUTHORIry TO INCREASE ITS RATES
AND CHARGES FOR WATER SERVICE
IN IDAHO
BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
)
)
)
)
)
)
CASE NO. SUZ-W-20-02
INTERVENOR' S RESPONSE TO
SUEZ'S MOTION IN OPPOSITION
TO PETITION TO INTERVENE
COMES NOW Intervenor lntermountain Fair Housing Council, Inc. (hereinafter
"Interyenor") and hereby responds to the Motion in Opposition to Intermountain Fair Housing
Council's Petition to Intervene (hereinafter "Motion in Opposition") filed by Suez Water Idaho
Inc. (hereinafter'oSuez") dated the 18ft day of November, 2020.
I.
As a preliminary matter, Suez has frled its Motion in Opposition pursuant to Rule 75 of
the Rules of Procedure of the Idaho Public Utilities Commission. Mtn. in Opp. at 1. Suez does
not reference the particular rule or rules pursuant to which it files its Motion in Opposition and
the Intervenorpresumes that it is filed pursuant to IDAPA $31.01.01.075, which is the rule that
INTERVENOR' S RESPONSE TO
SUEZ'S MOTION IN OPPOSITION
TO PETITION TO INTERVENE
KEN NAGY
Attorney st Llw
Lewiston, Idaho
1
provides for the filing of a motion in opposition to a petition to intervene. IDAPA
$31.01.01.075. T\atrule does not expressly provide for the filing of a response by the
intervening party and there does not appear to be any other rule which provides for such a
response.
However, the lntervenor feels compelled to submit this response because in its Motion in
Opposition, Suez has made several gross misrepresentations with regards to the application of
thefederalFairHousing Act,42U.S.C. $3601 etseq. (hereinafter*FHA"). Thepurposeofthis
response is to set the record straight with regards to the applicability of that federal statute.
u.
Suez asserts in its Motion in Opposition that "the Fair Housing Act...applies to specific
and enumerated circumstances-activities related to selling, renting, or financing dwellings."
Mtn. in Opp. at2 and 5. On the basis of this assertion, Suez contends that the [ntervenor's
petition to intervene should be denied because "Suez Water does not engage in the housing-
related activities regulated by the Fair Housing Act. Nor does the Application involve any of the
housing-related activities regulated by the Fair Housing Act." Mtn. in Opp. at7.
The United States Department of Housing and Urban Development (hereinafter'.HUD")
is designated as the federal agency that administers the FHA. 42 U.S.C. $3608. In making the
above argument, Suez has apparently consulted only guidance contained a HUD website in
support of its contentions that the FHA does not apply to the matters at issue in this proceeding.
Mtn. in Opp. at 4 (referencing HUD website located at:httns : //www.hud. sov/orosram
offrces/fair housine_equal opp/fair_housine act overview). ln so doing, Suez has disregarded
INTERVENOR' S RESPONSE TO
SUEZ'S MOTION IN OPPOSITION
TO PETITION TO INTERVENE
KEN NAGY
Attorney at Law
Lewiston, Idaho
2
the ample legal authorities which may it clear that the application of the FHA is not so limited as
Suez contends.
HUD has promulgated official regulations pertaining to the FHA, which are set forth at
24 C'F.R. $100 et seq. As to the scope of those regulations, they explicitly provide that..[t]his
part provides the Department's interpretation of the coverage of the Fair Housing Act regarding
discrimination related to the sale or rental of dwelling s, the orovision of services in connection
therewith, and the availability of residential real estate transactions.,, 24 C.F.R. $100.5(b)
(emphasis added).
It is well-settled in the federal courts that the FHA does not merely apply to housing
transactions and that it applies to a wide range of actions affecting housing. The United States
Supreme Court has held that "the language of the IFHA] is broad and inclusiv e.,, Trfficante v.
Metro. LifeIns. Co.,409 U.S.205, 209,93 S.Ct.364 (1972). Relyrnginpartonthe Trfficante
Court's reasoning, the Eleventh Circuit Court of Appeals recently rejected a municipality,s
argument that the FHA did not apply to its provision of utility services, holding that the FHA
"prohibits a wide range of conduct, has a broad remedial purpose, and is written in decidedly far-
reaching terms. The statute does not contain any language limiting its application to
discriminatory conduct that occurs prior to or at the moment of the sale or rental.,, Georgia State
Conference of the NAACP v. City of LaGrange, Georgia,940 F.3d 627,631-32 (llft Cir. 20lg)
(internal quotations and citations omitted). The City of LaGrangecourt concluded that..[t]he
basic utility services at issue here- water, gas, and electricity- are distinct from other
municipal services in trvo critical ways, both of which demonstrate their direct connection to the
sale or rental of a dwelling: (l) they are services closely tied to the sale or rental of a dwelling,
INTERVENOR'S RESPONSE TO
SUEZ'S MOTION IN OPPOSITION
TO PETITION TO INTERVENE
KEN NAGY
Attorney rt Lrw
Lewiston, Idaho
3
and (2) they are essential to the habitability of a dwelling. As explained further, these two
distinctions support our conclusion that the water, gas, and electricity services at issue here fall
within the scope of [the FHA]". Id. at 634'
Given these authorities, it is clear that Suez's contention that the FHA does not apply to
the matters before the Commission are erroneous'
m.
Suez further contends that the Intervenor's petition to intervene "presents issues entirely
outside the scope of this proceeding" and that the Intervenor's participation "would unduly
broaden the issues in the proceeding." Mtn. in Opp. at6' Suez explicitly prefers that this
Commission deny the Intervenor's participation in this proceeding and that the lntervenor instead
direct its concerns regarding the impact of Suez's requested relief "to the political branches' to a
court, or perhaps (at most) in an independent proceeding in this Commission"' Mtn' in Opp' at9'
The Intervenor,s purpose in seeking intervention is to raise issues concerning the public
interest, specifically whether the rate increase that Suez is seeking will violate the ratepayer's
fair housing rights. In considering whether to grant Suez',s requested increase in rate' such
matters are certainly within'othe scope of this proceeding"'
Furthermore, it is indeed an unusual argument that the Intervenor should be denied
participation in this Commissionos forum, where it can provide input into the rate-setting process
and how the ratepayer's fair housing rights may be impacted, and instead require the Intervenor
to seek redress through formal litigation. The Intervenor's intention in seeking to participate in
this proceeding is to hopefully avoid the necessity of potentially costly litigation for the parties
involved. Suez is essentially arguing that the rate-setting process should proceed with disregard
INTERVENOR' S RESPONSE TO
SUEZ'S MOTION IN OPPOSITION
TO PETITION TO INTERVENE KEN NAGY
Attorney st Law
Lewiston, Idaho
4
for the legal rights of the ratepayers and that any possible violations of the law should be
addressed after the rate-setting process is concluded. Such an argument tums logic and common
sense on its head.
As this Commission is well-aware, the rules provide that it may grant intervention to a
party and subject such intervention to "reasonable conditions,,. IDAPA $31.01 .01.074. Further,
"[i]f it later appears that an intervenor has no direct or substantial interest in the proceeding, or
that the intervention is not in the public interest, the Commission may dismiss the intervenor
from the proceeding." Id. The Intervenor has explained the reasons that is seeking intervention
in its Petition for Leave to Intervene, previously submitted to the commission. The Intervenor is
seeking intervention so that the implications of the FHA maybe addressed when the
Commission is considering whether to grant the rate increase that Suez is requesting. Such
matters are best addressed at the time of rate-setting rather than afterwards. In the event that the
Commission grants intervention to the Intervenor and later determines that the issues it is raising
are not in the public interest, it may dismiss the Intervenor as a party to the proceeding.
However, in such a situation, at least the Intervenor was afforded the opportunity to raise the
issues with which it is concerned and the Commission was afforded the opportunity to consider
those issues. Denying intervention to the lntervenor, as Suez has requested, would cut-off such
opportunities.
ry.
Finally, Suez contends that it had no obligation to provide notices to the rate-payers in
any other language besides English. Mtn. in opp. at7-8. Its only argument in support is that
such notices have always been provided in English. Id. at g.
INTERVENOR'S RESPONSE TO
SUEZ'S MOTTON IN OPPOSITION
TO PETITION TO INTERVENE
KEN NAGY
Attortrey rt Law
Lewiston, Idaho
5
In making this argument, Suez overlooks the provision in the rules conceming the issuing
of notices to the public, which provides that the information contained such notices is to be
..easily understood". IDAPA $3 1 .01 .01 . 125(03). Furthermore, the rule has the stated purpose of
..encourag[ing] wide dissemination to customers of information concerning proposed rate
changes for utility services." IDAPA $31.01.01.125(06). There is therefore no foundation for
the argument that the public notices issued herein complied with this rule if they were all issued
in English and a significant portion of the area's population are non-English speakers or are of
limited English profi ciencY.
Furthermore, the FHA prohibits discrimination in the "tems, conditions, or privileges
[in] the provision of services" in housing on the basis of race, color, religion, sex, familial status,
or national origin." 42 U.S.C. $3604(b). The failure to provide meaningful notice in this
proceeding to non-English speaking ratepayers and to ratepayers of limited English proficiency
appears to implicate this portion of the FHA by discriminating on the basis of national origin'
This matter therefore is not, as Suez contends, an "irrelevant issue". Mtn. in Opp. at 8'
Adequate notice to the public is a threshold issue that should be considered as early as feasible in
this proceeding, rather than leaving it offfor possible future litigation, as Suez seems to prefer'
DATED this 19th day of November 2020
Ken Nagy
Digiblly signed bY Ken NagY
DN: cn=Kcn l,lagy, o=Afrorn.Y at Law ou,
cmil=knagyC{€witton.com, (drs
Date:2o2o.l l.l 9 1307:30 {8'00'
KEN NAGY
Attorney for lntervenor
INTERVENOR'S RESPONSE TO
SUEZ'S MOTION IN OPPOSITION
TO PETITION TO INTERVENE 6 KEN NAGY
Attorney at Law
Lewiston, Idaho
CERTIFICATE OF SERVICE
I hereby certify that on the l9thday of November 2020,I caused to be
served a full, true, and accurate
addressed to the following:
copy of the foregoing by the method/s indicated below, and
JanNoriyuki
Commission Secretary
Idaho Public Utilities Commission
I l33l W. Chinden Blvd.
Building 8, Suite 201-A
P.O. Box 83720
Boise, ID 83720
[ ] Bv U.S. Mail
Ix] By Email to: [e-mail]
David Njuguna
Suez Water Managernent & Services
461 From Rd., Suite 400
Paramus, N.J. 07052
[ ] Bv U.S. Mail
Ix] By Email to: David.njuquna(dsuez.com
Michael C. Creamer
Preston N. Carter
Givens Pursley LLP
Attorneys atLaw
601 W. Bannock St.
Boise, ID 83702
[ ] Bv U.S. Mail
I x] By Email to: mcc@,eivensoursley.com
and prestonc arter@, givenspursley. com
Dayn Hardie
Deputy Attorney General
Idaho Public Utilities Commission
11331 W. ChindenBlvd.
Building 8, Suite 201-A
P.O. Box 83720
Boise, ID 83720
[ ] Bv U.S. Mail
[x] By Email to: [e-mail]
Loma Jorgensen
John Cortabitarte
Ada County Prosecuting Attorney's Office
Civil Division
200 W. Front St., Room 3191
Boise, ID 83702
[ ] Bv U.S. Mail
Ix] By Email to: [e-mail]
Ken Nagy Digitallysign€d by Ken Nagy
DNr cn=l(en Nagy, o=Attorney at Law ou,
rmail=knagy@lewidon.<om, eUS
Date:2020.1 1. !9 1 308:22 {8'00'
Ken Nagy
INTERVENOR'S RESPONSE TO
SUEZ'S MOTION IN OPPOSITION
TO PETITION TO INTERVENE 7
KEN NAGY
Attorney rt Law
Lewiston, Idaho