Local governments question Clean Air, Clean Jobs Act implementation
April 26, 2012
A coalition of Northwest Colorado governments scored an early victory in its fight against an implementation plan for the Clean Air, Clean Jobs Act.
The Colorado Supreme Court ruled this week to uphold the rights of the Associated Governments of Northwest Colorado in questioning the validity of an agreement between the Public Utilities Commission and the Public Service Company of Colorado following passage of HB10-1365, also known as the Clean Air, Clean Jobs Act.
The Public Service Company of Colorado is a subsidiary of Xcel Energy.
"We are very pleased that the Colorado Supreme Court has today made clear the AGNC's right to have its day in court," said Mike Sampson, Garfield County commissioner and Associated Governments of Northwest Colorado chairman, in a news release.
"The adverse impacts of the PUC-approved plan on Northwest Colorado communities are staggering. Northwest Colorado communities rely on valuable jobs associated with responsible coal mining, and the PUC's ill-conceived decision threatens these jobs."
HB10-1365 was designed to convert two power plants in Denver and one in Boulder from coal-fired to natural gas by 2018. The act passed the Legislature in March 2010.
The Public Service Company of Colorado drafted an implementation plan with an estimated cost of $1.3 billion, which would be passed along to its customers.
In 2011, the Associated Governments of Northwest Colorado, of which Routt County is a member, filed suit against the Public Utilities Commission in Routt County District Court, citing legal defects in the oversight agency's proceedings, including ignoring what effects the plan's costs would have on Colorado's economy and how the plan would displace approximately 3 million to 4 million tons of Northwest Colorado coal.
The suit also alleges two Public Utilities Commission members, Matt Baker and Chairman Ron Binz, orchestrated the Public Service Company of Colorado deal behind closed doors. The Associated Governments of Northwest Colorado contends that Binz and Baker should have recused themselves from voting on the plan and that their participation in the legislative process violates ethical rules.
Through its counsel, Colorado Attorney General John Suthers, the Public Utilities Commission attempted to have the case dismissed, citing the Associated Governments of Northwest Colorado's failure to file the lawsuit in the appropriate venue.
According to 2011 Colorado Revised Statutes, petitions for judicial review must be "commenced and tried" in district court where the petitioning corporation has a principal office.
Under the statute, such petitions also may be filed in Denver District Court. But the Associated Governments of Northwest Colorado, which is headquartered in Garfield County, did not file its petition in its home district or in Denver.
Despite the discrepancy in venue, Justice Gregory J. Hobbs Jr. delivered a favorable opinion of the court for the Associated Governments of Northwest Colorado.
In his 12-page decision, Hobbs highlighted several examples to uphold Routt County District Court's authority to transfer the case to the correct venue.
Paul M. Seby, of Moye White LLP in Denver, is serving as counsel for AGNC. He has decided to try the case in Denver District Court.
"I don't think there was any substance in that decision other than most PUC matters are handled here" in Denver District Court, Seby said.
"We're extremely pleased that the Supreme Court has directed the courts to review the issues on the merits and that no further PUC delay will be tolerated."
Moffat County Commissioner Audrey Danner, who serves as an alternate on the AGNC board, was similarly pleased.
"It's a huge win," Danner said. "The PUC has overlooked Moffat County and the rest of the AGNC counties with the implementation of HB10-1365.
"It's going to cost our power plants more money and we (as consumers) are going to bear the brunt of the cost to pay for the changes."
Now that the Supreme Court has issued its opinion, Seby said it would issue a mandate to transfer the case from Routt County District Court to Denver District Court. He expects Judge Shelley Hill to sign the transfer within the week and anticipates briefings will begin in Denver this summer.
Seby hopes to hear a decision by the end of fall.