When Pete Strom and a bunch of other lawyers filed a class-action lawsuit in September to make SCE&G give back the billions of dollars it has charged ratepayers for its now-abandoned nuclear reactors, they also sued the state of South Carolina.
But you wouldn’t know that if you sat in the courtroom or read the legal briefs. Some of the most powerful arguments on behalf of the ratepayers are coming from Solicitor General Bob Cook — who works for Attorney General Alan Wilson.
It’s not the first time the the attorney general’s office has sided with the plaintiff in a lawsuit against the state. But it’s rare.
Then-Attorney General Henry McMaster famously did that same thing in 2004 when Ed Sloan filed a lawsuit alleging that the Life Sciences Act was an orgy of unconstitutional bobtailing. Rather than defending the state or stepping aside, as attorneys general usually do, Mr. McMaster developed the nuanced argument that became the state Supreme Court ruling, which in turn led to a string of cases that did more than most people realize to rein in the once-all-powerful General Assembly. Until the court got tired of doing that. But that’s another story.
As Mr. McMaster explained to me at the time, unlike the lawyers who work for state agencies, the job of the attorney general isn’t to defend the agency he works for, or even the state of South Carolina. It’s to defend the state constitution. In the Life Sciences case, the attorney general was served with the lawsuit, studied it and determined that the plaintiff was right, that the Legislature had violated the state constitution.
LeBrian Cleckley v. SCE&G and the state of South Carolina could be the most important of several lawsuits filed against SCANA, as it provides the courts a clear opportunity to declare all or part of the Base Load Review Act unconstitutional and reduce or eliminate SCE&G’s nuclear surcharge even if the Legislature fails to act.
The case was filed the day after Mr. Cook issued the opinion for the attorney general’s office concluding that the 2007 law was “constitutionally suspect” because it allowed SCE&G to charge customers billions of dollars for electricity that they will never receive. His opinion also said the Legislature could modify the law retroactively to reduce the amount of money SCANA can recover from ratepayers and possibly even force refunds — something lawmakers are now struggling over.
Given that timing, it was a pretty safe guess that the attorney general’s office would not be defending the state against the lawsuit. And it’s not.
Here are some other pieces I’ve written about this that you might find helpful:
Ms. Scoppe writes editorials and columns for The State. Reach her at firstname.lastname@example.org or (803) 771-8571 or follow her on Twitter or like her on Facebook @CindiScoppe.