Supreme Court sides with Associated Governments of Northwest Colorado
April 25, 2012
In other action …
During its meeting Monday, the Moffat County Commission:
• Approved, 3-0, a $2,949,393 bid to Connell Resources, Inc., for five asphalt projects this year.
• Discussed Federal Mineral Lease Districts with Moffat County Attorney Jeremy Snow.
• Approved, 3-0, a joint county oil shale resolution with more than 10 counties in Colorado, Utah and Wyoming, opposing the Bureau of Land Management’s 2012 Oil Shale and Tar Sands draft environmental impact statement.
• Discussed appropriating $1,000 for a town clean-up project and the painting of murals in preparation for the Norman Rockwell exhibit in May at the Museum of Northwest Colorado.
A lawsuit challenging the Colorado Public Utilities Commission's approval of an implementation plan for House Bill 10-1365, also known as the Clean Air, Clean Jobs Act, will be heard in Denver District Court.
The state supreme court ruled Monday to uphold the rights of the Associated Governments of Northwest Colorado to question the validity of an agreement between the PUC and the Public Service Company of Colorado following passage of the bill.
PSC is a subsidiary of Xcel Energy, Inc., established in December 2010.
"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 AGNC 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 PSC drafted an implementation plan with an estimated cost of $1.3 billion, which would be passed along to PSC customers.
In 2011, AGNC, of which Moffat County is a member, filed suit against the PUC in Routt County District Court citing legal defects in the oversight agency's proceedings, including ignoring what affects the plan's costs would have on Colorado's economy and how the plan would displace approximately three to four million tons of Northwest Colorado coal.
The suit also alleges two PUC members, Matt Baker and chairman Ron Binz, orchestrated the PSC deal behind closed doors. AGNC contends 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 PUC attempted to have the case dismissed, citing AGNC'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 may also be filed in Denver District Court. But AGNC, 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 AGNC.
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.
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