Colorado high court allows lawsuit against anti-coal plan to proceed

The Colorado Supreme Court on April 23 allowed a lawsuit filed by the Associated Governments of Northwest Colorado (AGNC) over a state law that is forcing the shutdown of coal-fired capacity in Colorado to proceed in a local court.

The high court noted that AGNC did timely petition the Routt County District Court, in two cases, for a writ of certiorari or judicial review. AGNC wished to challenge orders of the Colorado Public Utilities Commission (PUC). The orders adopted in part an emission reduction plan of the Public Service Co. of Colorado unit of Xcel Energy. AGNC is a voluntary regional association representing cities and counties in northwest Colorado including Mesa, Garfield, Rio Blanco, Moffat and Routt.

AGNC alleged that the PSCo plan: was untimely filed in violation of the Clean Air Clean Jobs Act (CACJA); relied unlawfully on a determination of the Colorado Department of Public Health and Environment; was arbitrary, capricious, and unsupported by evidence; failed to adequately consider economic and environmental effects; and depended on unreliable cost calculations. AGNC also alleged that two commissioners should have been disqualified from participating in the PUC decisions.

The PUC and intervenors moved to dismiss on the ground that the Routt County court lacked subject matter jurisdiction. State law requires that any suit brought to challenge a PUC order be “commenced and tried” in district court, either in the county the petitioner maintains its principal office or place of business or in Denver District Court. The district court found, and AGNC does not dispute, that its principal office or place of business is not in Routt County but in Garfield County. Nevertheless, the district court did not dismiss the case. It concluded that the language in state law requiring a case to be “commenced and tried” in one of two district courts was a venue provision, not a jurisdictional limitation. As such, the court ordered AGNC to select one of the two courts, and indicated that it would order a transfer.

“We do not construe the General Assembly’s intent in enacting section 40-6-115 as prohibiting a venue transfer to the Denver District Court, as here,” the high court noted. “The district court correctly determined that venue was proper in the district court of either Garfield County or the City and County of Denver. AGNC has elected to proceed in Denver. The court may order a transfer to the District Court for the City and County of Denver. Accordingly, we discharge the rule and return the case to the Routt County District Court for further proceedings consistent with this opinion.”

The CACJA required PSCo to file a comprehensive plan with the PUC to reduce annual emissions of NOx by 80% or greater from 2008 levels by 2017 from the coal-fired generation identified in the plan. The plan allows PSCo to propose emission controls, plant refueling, or plant retirement of at least 900 MW of coal-fired units in Colorado by 2017.

In December 2010, the CPUC approved the following under the act:

  • Shut down of Cherokee Units 2 and 1 in 2011 and 2012, respectively, and Cherokee Unit 3 (365 MW in total) by the end of 2015, after a new natural gas combined-cycle unit is built at Cherokee (569 MW).
  • Fuel-switch Cherokee Unit 4 (352 MW) to natural gas by 2017.
  • Shut down Arapahoe Unit 3 (45 MW) and fuel-switch Unit 4 (111 MW) in 2014 to natural gas.
  • Shut down of Valmont Unit 5 (186 MW) in 2017.
  • Installation of selective catalytic reduction (SCR) for controlling NOx and a scrubber for controlling SO2 on Pawnee in 2014.
  • Installation of SCRs on Hayden Unit 1 in 2015 and Hayden Unit 2 in 2016.
  • Conversion of Cherokee Unit 2 and Arapahoe Unit 3 to synchronous condensers to support the transmission system.
About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.