Kansas may order release of natural gas invoices from Winter Storm ... - The Topeka Capital-Journal

Kansas may order release of natural gas invoices from Winter Storm Uri

Kansas regulators will reconsider releasing natural gas invoices as legal deadline nears
Jason Alatidd

Kansas regulators will reconsider releasing natural gas invoices showing who got paid during the February 2021 winter storm as a legal deadline approaches for $314 million in claims.

The Kansas Corporation Commission has opened a docket to decide on the continued confidentiality of invoices for natural gas supplied to the state's regulated utility companies.

"The Commission directed the opening of a general investigation to comprehensively address the confidentiality of natural gas invoices in the Uri Dockets," the KCC said in an order. "Accordingly, the Commission opens a general investigation into whether certain documents designated as confidential in the Uri Dockets should remain confidential."

The action comes after energy law attorney Jim Zakoura's open records requests for invoices of natural gas supplied to regulated Kansas energy utilities during Winter Storm Uri.

"We are hopeful the General Investigation ordered by the KCC will result in the disclosure of information that will provide an opportunity for the claims of retail ratepayers to be heard by the courts," Zakoura said in a statement.

The February 2021 winter storm saw natural gas prices soar 24,419% amid a mix of high demand and low supply, despite a state consumer protection law and emergency declaration designed to prevent price gouging. It didn't work, as consumers are now footing the bill for $808 million in extraordinary costs incurred by Kansas Gas Service, Evergy and other utility companies.

Customers could ultimately get partial refunds, but only if and when any legal action wins any money.

While Kansas Attorney General Kris Kobach's market manipulation lawsuit against gas supplier Macquarie Energy was dismissed on a technicality, the federal judge invited Kobach to refile the case. The attorney general has hired a new law firm, Hilgers Graben of Lincoln, Nebraska, which may file a new lawsuit.

Meanwhile, Zakoura has filed two class action lawsuits representing customers of Kansas Gas Service, which has provided information on gas suppliers from its invoices, and the Kansas Municipal Gas Agency, which has released its invoices.

But Zakoura has been unable to get unredacted invoices from Black Hills Energy, Evergy, Atmos Energy and Empire District Electric, also known as Liberty. The KCC order for further investigation was spurred largely by a request for Black Hills' invoices, which was followed by additional records requests of the other utilities

"To recover funds for Kansas consumers under the KCPA — both the identity of the natural gas suppliers to Black Hills in February 2021, and the prices those suppliers charged needs to be known," Zakoura said. "... The customers of Black Hills should not have to pay more than Kansas law permits — that is the protection that the Kansas Legislature and Governor Kelly provided to each Kansas consumer of natural gas."

The attorney general's office has copies of the invoices, but they are subject to a nondisclosure agreement.

"The commission realizes the importance of these documents, and that's why I think it's important to note that the Kansas Attorney General's Office has full access to unredacted copies of these and has this information," said Brian Fedotin, a KCC attorney. "So the idea that the public is unprotected and hasn't had the advantage of interests that look out for the public to have these documents, I want to be sure that that's clear."

Commissioner Andrew French said the confidentiality of the invoices from Uri "is a pretty grave decision," and an open records request "is not really the proper vehicle for us to decide that type of issue." But even if the information is confidential, "it may still be in the public interest to remove it in this very unique and specific case."

The utilities have argued that releasing the invoices would mean releasing confidential trade secrets, which could be detrimental to securing future supplies of natural gas at competitive prices.

"The thing I think that's really consequential here ... it's the holistic approach that we're taking to this subject of disclosure," said KCC commissioner Dwight Keen. "Given the unusual circumstances and the gravity of the impact that these Winter Storm Uri costs have imposed upon ratepayers, we can basically balance the competing interests of having the disclosures provided to the extent that they can aid in litigation, against the concerns about confidentiality that some of the utilities may have."

A subsequent KCC order will provide more guidance on the schedule and scope of the investigation.

Zakoura has asked for a more expeditious KCC proceeding as state consumer protection claims would be barred once the statute of limitations runs out this coming February. Ratepayers would then lose their chance at recovering about $314 million from the suppliers of Evergy, Black Hills, Atmos and Liberty.

Jason Alatidd is a statehouse reporter for the Topeka Capital-Journal. He can be reached by email at jalatidd@gannett.com. Follow him on X @Jason_Alatidd.