Group sues to overturn Colorado renewable mandate

By David O. Williams
Real AspenApril 6, 2011
Xcel Energy, the state’s largest utility and a key backer of Colorado’s aggressive renewable energy standard (RES), reacted with skepticism to Monday's lawsuit seeking to overturn a state law mandating 30 percent of Xcel’s electricity be produced by renewable sources by 2020.

“We haven’t yet completely reviewed the legal filing, but we understand that it was made by a Washington, D.C.-based advocacy organization,” Xcel spokesman Mark Stutz said. “We would be surprised if a federal court would overturn Colorado’s legislatively approved Renewable Energy Standard.”

American Tradition Partnership (ATP), a conservative, pro-fossil fuel nonprofit group, filed the lawsuit in U.S. District Court in Denver on Monday, labeling Colorado’s RES the “Expensive Energy Mandate.”

The nonprofit American Tradition Institute and Morrison “tech entrepreneur” Rod Lueck also are named as plaintiffs in the case, which seeks to overturn Colorado’s RES on the “grounds it wrongfully interferes with interstate commerce, violating Article I, Section 8 of the United States Constitution,” according to an ATP release.

“The Expensive Energy Mandate doesn’t just kill jobs and drive up prices, it wrongfully interferes with interstate commerce by disrupting the interstate power grid,” ATP Executive Director Donald Ferguson said in the release. “Families and consumers, along with the Constitution, are wronged by the Expensive Energy Mandate.”

However, Colorado voters in 2004 approved Amendment 37 by a margin of 53 to 47 percent, setting the RES for public utilities at the 10 percent by 2020 level. At the time, the RES was statutory and not a constitutional amendment. The legislature made the RES state law in 2005 and then twice increased it – first to 20 percent by 2020 and then to 30 percent last year.

“The voters started this whole movement to [bring] wind and sun power here in Colorado,” said Colorado Conservation Voters Executive Director Pete Maysmith. “Since then it’s been embraced by the major utility and it’s continually reaffirmed by voters that they want to and like getting more of their power from the wind and the sun and other forms of renewables. And it’s been one of the few economic bright spots in the state in the last several years.”

ATP, an organization with a long track record of opposing the renewable energy industry, argues that wind energy is dirtier than other forms of energy, although the group cites no hard data.

“Environmentalism demands policies that actually improve the environment in a manner compatible with a healthy economy. The hard facts show that wind energy is not affordable and is not clean,” said Dr. David Schnare, Director of the Environmental Law Center of the American Tradition Institute. “As such, wind energy deserves to be put on trial.”

Minnesota-based Xcel Energy is recognized as the nation’s top wind energy producer and expects to get 20 percent of its electricity from wind by 2020.

“On its face it appears to be an absurd and extremely convoluted legal argument by which to attack the renewable energy standard,” said Maysmith. “The premise of it is that the benefit to Coloradans of getting 30 percent of our energy from wind, sun and other forms of renewable energy is going to be outweighed by the burden being placed on out-of-state dirty power producers. That’s the case they have to make.

“It’s hard to imagine that anyone is going to take that argument seriously except for this extremist, fringe group.”

Sen. Gail Schwartz

Democratic State Sen. Gail Schwartz is weighing a bill this session that would compel 501(c)4 nonprofits such as ATP and its affiliate, Western Tradition Partnership, to reveal their donors and their contributions to 527 groups (named for a section of the tax code) that have been highly active in recent elections.

Schwartz, who sponsored the increase to a 30-percent RES last session, was hit with what Maysmith at the time called one of the dirtiest campaign mailers in the state when the 527 group Western Tradition Partnership Education Fund put her face on Donald Trump’s body with the tagline “You’re Fired!” It was a reference to supposedly “job-killing” clean energy policies.

Schwartz did not return a call requesting comment on Monday.

ATP and WTP’s Ferguson threatened litigation against any legislative attempt to “silence dissent.” WTP also has been involved in litigation in Montana, where the group was censured by state election officials for “raising the specter of corruption.” Even some Republican politicians have argued the groups go too far in using questionable campaign tactics to further a pro-coal, pro-oil and gas, pro-gun agenda.

Monday’s lawsuit is aimed at Colorado Gov. John Hickenlooper; Barbara J. Kelley, executive director of the Colorado Department of Regulatory Agencies (DORA); and Colorado Public Utilities Commission (PUC) board members Ron Binz, James Tarpey and Matt Baker.


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