Utilities board meets to discuss Sierra Club suit

Fri, Dec 14, 2012


Remember the old adage, attributed variously to Otto von Bismarck and to a 19th-century Illinois legislator? “I have come to the conclusion that the making of laws is like the making of sausages—the less you know about the process the more you respect the result.”

That quotation seemed apt yesterday afternoon during a particularly dismal and dispiriting City Council meeting. Gathering in their capacity as the Board of Directors of Colorado Springs Utilities, Councilors fumbled, stumbled, argued, wandered in and out of the meeting for no apparent reason, and finally made a decision about something, although the exact nature of the something they decided was not revealed.

CSU attorneys and managers had apparently negotiated a so-called “tolling agreement” with the Sierra Club, hoping to forestall a threatened lawsuit. After considering a few relatively routine measures in open session, Board members decreed the meeting closed and shooed out the public and the media.

A rag-tag group including the Sierra Club’s Bryce Carter, a CSBJ reporter, the Gazette’s Daniel Chacon, and the Indy’s Pam Zubeck cooled their heels outside the Utilities 5th-floor conference room where the board holds its marginally public meetings. We were joined after a while by Americans for Prosperity heavyweight Sean Paige and Utilities gadfly Kanda Calef.

Surreptitiously listening behind the locked doors, it sounded like a bitterly contentious meeting. Voices were raised, several people spoke at once, but we couldn’t quite make out the words.

Time passed. Carter and Paige had a long, apparently amiable conversation. Kanda Calef regaled Chacon and I with tales of the Mexican-American wars, which she’s learning about as she home schools her son.

Finally the doors opened. It was 5:45.

We were greeted by a grim-faced array of Board members, clearly tired and exasperated with each other, the lateness of the hour, the endless meeting, and, I suspect, the fact that they are required to make vitally important decisions about a multi-billion dollar municipally-owned utility without pay.

Board president Hente asked for a motion concerning the item that the Board had just spent more than an hour discussing in closed session. The item was not identified. Paige and Kalef, assuming that the Board had just made a secret deal with the Sierra Club, declared in no uncertain terms that they were opposed to the deal, whatever it was. Paige vowed that Board members would long rue their votes, if they approved whatever it was.

“I’m not making threats here,” Paige said. “but people are going to hold you responsible.”

Faulting the Board for apparently negotiating a secret agreement with the Sierra Club and then bringing it forward in a farcical ‘open’ session without public notice, Paige then got into a shouting match with Board member Tim Leigh, who maintained that the process was perfectly kosher.

“We never would have done this (when I served on Council),” Paige thundered, “You’re being hypocritical, Tim.”

City attorney Chris Melcher supported Council’s action, characterizing the agreement as not an agreement at all but merely a negotiating framework, a preliminary agreement to address how to negotiate with the Sierra Club.

The mystery agreement came to a vote. Council rejected the agreement 5-3. A subsequent motion to abide by the terms of the agreement, but not sign it also failed, this time by a 4-4 vote.

After all the sound and fury, it appears that the agreement had little substance. The so-called tolling agreement between CSU and the Sierra Club would only have established a 37-day waiting period, during which neither party would litigate against the other. CSU would not have stopped work on the controversial NeuStream antipollution system and procurement would not have been delayed.

Board member Bernie Herpin noted that CSU had gotten everything they wanted in the agreement, that it would have no effect on their operations, and those facts made him suspicious.

“The deal’s too good,” said Herpin, “and that’s why I’m voting against it.”

The smiling Carter, who might make a formidable poker player, displayed no emotion after the vote. He sent out a press release later reminding CSU, the Board, and Colorado Springs residents what was at stake.

“We are disappointed that the Colorado Springs Utilities Board did not vote favorably to reach an agreement on this issue,” Carter said. “Colorado Springs Utilities’ use of coal to generate power continues to pose alarming public health and financial risks to Colorado Springs families. The operation of the 50-year old Martin Drake and the 32-year old Ray Nixon coal plants without modern pollution controls constitutes a serious violation of federal law and a menace to public health. We engaged in discussions as part of the regular process of our notice to proceed with litigation on these violations. We hope to continue discussions to find a way to work this out in an amiable and productive manner rather than in the courts – as these violations should not be taken lightly. CSU has been actively making major modifications to the Martin Drake and Ray D. Nixon coal fired plants without obtaining necessary permits or installing the pertinent industry standard pollution controls required by the Clean Air Act.

“Moreover, these coal plants pose heavy financial risks to the city’s local economy. These violations are only the latest in a series of financial challenges the aging coal plants face as a result of their use of coal. The City of Colorado Springs also risks potential ‘nonattainment’ status from the federal government as nearby monitoring stations have shown ozone levels above the federal limit. Coal-fired power plants like Martin Drake and Ray D. Nixon are a leading source of pollutants that contribute to ozone pollution. A non-attainment designation by the EPA could have a disastrous effect on the already depressed local economy and future businesses by severely limiting the availability of permits for large projects, thereby suppressing economic development. It’s time for CSU to take a serious look at its use of coal and do what’s best for the economic and public health of Colorado Springs.”

No present Councilors were in office the last time the Sierra Club and the city clashed. It might have served them well to investigate the circumstances of the case.

A dozen years ago, the Sierra Club sued the city, arguing that the city’s operation of the Pikes peak Highway had caused severe and continuing violations of the Clean Water Act. The city settled, agreeing to pave the Pikes Peak Highway, build extensive new drainage structures, and perform environmental remediation. The cost: more than $12 million.

If the club files suit – and there’s every indication that it will – the bill might run into hundreds of millions this time. So why negotiate a deal?

Macho posturing is always much more fun…


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