May 22, 2013

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SB 13-286: Extending the Time that Renewable Energy Companies May Carry Over Excess Enterprise Zone Investment Tax Credits

May 6, 2013 by Leave a Comment

On Wednesday, April 24, 2013, Sen. Mary Hodge introduced SB 13-286 – Concerning an Extension of the Number of Years that a Renewable Energy Company May Claim Excess Enterprise Zone Investment Income Tax Credits as Credit Carryovers. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill gives renewable energy companies extended carryover periods for enterprise zone investment tax credits that such renewable energy companies have earned in the past and may earn in the future.

The bill was introduced on April 24 and has been assigned to the Finance Committee. The bill is on the Finance Committee schedule Tuesday, April 30 at 1:30 p.m.

Since this summary, the bill was referred, unamended, to the Senate Committee of the Whole.

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SB 13-282: Exempting Qualifying Customers with Specified Medical Conditions from Tiered Electricity Rates

May 3, 2013 by Leave a Comment

On Thursday, April 18, 2013, Sen. Lucia Guzman introduced SB 13-282 – Concerning a Medical Exemption from Tiered Electricity Rates. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires the public utilities commission to adopt rules by Nov. 1, 2013, to exempt customers with certain medical conditions from tiered electricity rates. Only customers who have an annual income of less than 60 percent of the median area income may qualify for this exemption. The bill establishes that fraudulent receipt of or application for this exemption constitutes theft.

If the commission fails to adopt rules by Nov. 1, 2013, the medical exemption from tiered electricity rates takes effect on that date.

The bill passed out of the Senate on 3rd Reading on April 26 and has been assigned to the Transportation & Energy Committee.

Since this summary, the bill was referred, amended, to the House Committee of the Whole.

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SB 13-272: Including Renewable Energy Technologies in Measures that May be Used in a Gas Utility’s Demand-side Management Program

April 26, 2013 by Leave a Comment

On Monday, April 15, 2013, Sen. Gail Schwartz introduced SB 13-272 – Concerning Modifications to Energy Demand-side Management Programs, and, in Connection Therewith, Creating a Pathway for Inclusion of Innovative and Emerging Technologies to Offset the Consumption of Natural Gas. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law rewards the use of renewable energy resources for generating electricity and encourages efficiency measures that reduce demand for both electricity and thermal energy generated from fossil fuels. But current law does not comprehensively encourage the production of thermal energy from renewable sources when offsetting fossil fuels used for heating and cooling. The bill addresses this disparity by adding renewable energy technologies to the measures that may be deployed under existing law as part of a gas utility’s demand-side management (DSM) program. In addition, the bill:

  • Requires investor-owned retail natural gas utilities to devote 30% of their DSM budgets to support the installation of renewable energy technologies that cannot be net metered;
  • Caps gas utility DSM program expenditures at 4% of total full-service retail sales;
  • Directs investor-owned retail natural gas utilities to submit, and the public utilities commission (PUC) to consider, proposals to include their most cost-effective and consistently marketable DSM products and services in their rate base, thus freeing up a portion of their existing DSM budgets for emerging technologies; and
  • Urges the PUC, in any proceeding concerning DSM programs of electric utilities, to draw on the information and experience gained in connection with gas DSM programs as modified by the bill to promote emerging technologies that offset electricity consumption.

The bill was introduced on April 15 and assigned to the Agriculture, Natural Resources, & Energy Committee. On April 18 the committee took testimony. The bill is back on the calendar for April 23 at 7:30 a.m.

Since this summary, the bill was postponed indefinitely by the Agriculture, Natural Resources, & Energy Committee.

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SB 13-252: Encouraging Methane Capture Technologies by Increasing Colorado’s Renewable Energy Standard

April 19, 2013 by Leave a Comment

On Wednesday, April 3, 2013, Sen. John Morse introduced SB 13-252 – Concerning Measures to Increase Colorado’s Renewable Energy Standard so as to Encourage the Deployment of Methane Capture Technologies.  This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In the statute creating Colorado’s renewable energy standard, as introduced, the bill removes in-state preferences with respect to:

  • Wholesale distributed generation;
  • The 1.25 kilowatt-hour multiplier for each kilowatt-hour of electricity generated from eligible energy resources other than retail distributed generation;
  • The 1.5 kilowatt-hour multiplier for community-based projects; and
  • Policies the Colorado public utilities commission (PUC) must implement by rule to provide incentives to qualifying retail utilities to invest in eligible energy resources.

The bill also raises the percentage of retail electricity sales that must be achieved from eligible energy resources by cooperative electric associations that provide service to 100,000 meters or more from 10 to 25 percent, starting in 2020, and increases the allowable retail rate impact for cooperative electric associations from 1 to 2 percent.

The bill expands the definition of “eligible energy resources” that can be used to meet the standards to include coal mine methane and synthetic gas produced by pyrolysis of municipal solid waste, subject to a determination by the PUC that the production and use of these gases does not cause a net increase in greenhouse gas emissions.

The bill also implements a new eligible energy standard of 25 percent for generation and transmission cooperative electric associations that directly provide electricity at wholesale to cooperative electric associations in Colorado that are its members. The standard applies only to sales by these wholesale providers to their members in Colorado. The wholesale providers are required to make public reports of their annual progress toward meeting the standard by 2020. The PUC is granted no additional regulatory authority over these providers in the implementation of this standard.

On April 12, the Senate amended the bill and passed it on 2nd Reading.

Since this summary, the bill was passed in the Senate on Third Reading.

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HB 13-1027: Requiring Public Utilities Commission Director to Report Annually on Rate Actions

February 5, 2013 by Leave a Comment

On January 9, 2013, Rep. Kathleen Conti introduced HB 13-1027 - Concerning an Increase in the Transparency of Proceedings Before the Public Utilities Commission by Requiring the Director of the Commission to Report Annually to the General Assembly Regarding Matters Discussed on the Record in Energy Rate Cases.  This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires the director of the public utilities commission (PUC) or the director’s designee to report annually to the joint house and senate transportation committees regarding matters discussed on the record in energy rate case hearings that were decided by the commission during the immediately preceding two years.

For all rate cases included in the report, the bill directs the commission to estimate the economic impact of the rates involved, including the average increase or decrease in ratepayers’ monthly bills. On Feb. 1, the Appropriations Committee approved the bill and sent it to the full House for consideration on 2nd Reading.

Since this summary, the bill passed Second Reading in the House with amendments.

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Tenth Circuit: Statute of Limitations Begins to Run Under Mineral Leasing Act with Final Decision of Secretary

September 7, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Impact Energy Resources, LLC v. Salazar on Wednesday, September 5, 2012.

Appellants are energy companies who submitted high bids on oil and gas leases at a BLM auction. Before the leases were issued, Secretary of the Interior Ken Salazar “announced his decision at a February 4, 2009, press conference and memorialized his determination in a February 6 memorandum to the BLM’s Utah State Director. On February 12, 2009, a subordinate BLM official mailed letters to the high bidders indicating that the leases would not be issued.” The energy companies sued 90 days after the February 12th letter. The district court dismissed the suit because 30 U.S.C. § 226-2 of the Mineral Leasing Act provides a 90-day statute of limitation “after the final decision of the Secretary relating to such matter,” and the final decision of the Secretary had occurred on February 6, not 12.

In a per curiam opinion, a majority of the Tenth Circuit panel agreed with the district court, and with its decision that equitable tolling did not apply here. “Judge Lucero would hold that under the plain text of the MLA, the Secretary’s decision was final on February 6 regardless of whether plaintiffs’ claims under the Administrative Procedure Act (“APA”) had accrued at that time. Judge Seymour would hold that the word “final” bears the same meaning in the phrase “final decision of the Secretary,” 30 U.S.C. § 226-2, as it does in the phrase “final agency action” under the APA, 5 U.S.C. § 704, and that final agency action occurred no later than February 6.”

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Tenth Circuit: Experts As Lay Witnesses; Exclusion of Experts; No Prosecutorial Misconduct

September 4, 2012 by Leave a Comment

The Tenth Circuit published its opinion in United States v. Orr on August 29, 2012.

William Orr, a creator of an alternative fuel, was convicted of wire and mail fraud, tax evasion, and making false statements to investors and the federal government. Orr hired scientists to perform tests on his fuel at his request. These scientists testified at trial as lay witnesses for the prosecution. Orr objected to the admission of their testimony because the government did not qualify them as expert witnesses under FRE 702. The Tenth Circuit found no abuse of discretion in allowing them to testify as lay witnesses. “It makes no difference if the court qualified these witnesses as experts because Orr engaged them to perform the precise services and provide the information which was the subject of their testimony. . . . The trial court walked a careful line between allowing these witnesses to testify based on first-hand knowledge and disallowing opinions based on their expertise.” The court also disposed of Orr’s argument that “the admission of the non-expert testimony violated his Sixth Amendment right to confront the witnesses and his Fifth Amendment right to a fair trial. . . .” Claiming defense counsel could not ask certain questions of the witnesses with no way to ascertain what those questions might be was too speculative to be an error.

Orr also objected to the exclusion of some of his proffered experts. The Tenth circuit found Orr failed to meet his burden of showing one expert’s methodology was reliable. Other witnesses were properly excluded because their testimony would confuse the issues. A defendant’s “right to present a complete defense must ‘bow to accommodate other legitimate interests in the criminal trial process.’”

Orr claimed government misconduct based on the prosecutor’s hypothetical questions to investor witnesses. The court disagreed. “[T]he prosecutor here was required to show that Orr deliberately misrepresented material facts to his investors. The prosecutor’s question went to the material nature of Orr’s statements. The question focused on the investor’s willingness to supply money if he discovered the tests did not show the promised advantages over other fuels. The prosecutor did not express her personal beliefs about these matters and the question was based on testimony presented to the jury.”

The court also denied Orr’s prosecutorial misconduct claims that the prosecution implicitly called Orr and his defense counsel liars in closing argument by saying the investors relied on Orr’s “false statements and his lies to invest a second time.” Where some of the charges required proof the defendant lied to his investors and the government, this was acceptable language. “In the proper context, such as where the testimony conflicts on key aspects of a case and the jury must determine credibility, it is not misconduct to refer to the defendant’s statements as lies.”

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Tenth Circuit: Importance of Preserving Your Best Arguments in the Proper Administrative Forum

August 29, 2012 by Leave a Comment

The Tenth Circuit published its opinion in Public Service Company of New Mexico v. National Labor Relations Board on August 28, 2012.

Robert Madrid worked for Public Service Company of New Mexico (PNM), collecting overdue bills for the electric utility. Angered by a particularly obstinate customer and without his supervisor’s permission, Mr. Madrid drove to the customer’s home and disconnected the gas line that was not provided by PNM, but another utility. PNM fired Mr. Madrid.  Mr. Madrid’s union filed a grievance on his behalf contesting his dismissal. The union argued that Mr. Madrid’s firing violated its collective bargaining agreement with the company. The union hypothesized that Mr. Madrid may have treated more harshly than other employees guilty of similar things.

The union sent PNM a discovery request demanding documents showing whether and to what extent PNM had disciplined other employees who, like Mr. Madrid, violated the company’s ethics policy or state law.

PNM provided documents disclosing disciplinary actions taken against union employees, but it refused to provide information about discipline meted out on non-union workers.  The company argued that information about non-union employees was irrelevant. PNM eventually handed over the requested documents. However, because of its many months of delay, the Board found that PNM had engaged in an unfair labor practice.  The Board ordered PNM to post a notice informing employees of their rights under the law, PNM’s violation, and the company’s promise to do better going forward.

PNM now petitions the Tenth Circuit for review of the Board’s decision and the Board cross-petitions asking us to enforce its order.  The only question the company raises on appeal is whether the disciplinary information about non-union employees was relevant to the union’s processing of Mr. Madrid’s grievance.

The most significant relevance objections PNM seeks to press in the Tenth Circuit never made their way into the proceedings before the Board. And under 29 U.S.C. § 160(e),  ”No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.”

The Tenth Circuit divided PNM’s appeal into two parts: the set of objections it preserved by raising them with the Board, and the set it did not.

Taking the first group first, the Court agreed to hear PNM’s claims that (1) information about the discipline of non-union employees is irrelevant because non-union employees aren’t “similarly situated” to union employees, (2) the union was obliged to timely explain the relevance of its information; and (3) the union’s request was motivated by an improper purpose.

Regarding PNM’s first objection, because the rules serving as the basis for Mr. Madrid’s termination applied to union and non-union employees equally, the documents were held to be relevant. In response to the second objection, the Court found the record contained substantial evidence that the union did timely apprise PNM of the basis for its request. In response to PNM’s third objection, the Court held that PNM did not carry its burden to show affirmatively that the Board’s findings are ones no reasonable mind could accept.

The Court held it had no authority to hear the remainder of PNM’s objections because PNM never raised them with the Board as required by 29 U.S.C. § 160(e). Accordingly, PNM’s petition for review was denied, and the Board’s cross-petition for enforcement of its order was granted.

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Tenth Circuit: Dismissal of Complaint for Declaratory and Injunctive Relief Affirmed Because Claims Were Not Yet Ripe

August 28, 2012 by Leave a Comment

The Tenth Circuit published its opinion in Los Alamos Study Group v. US Department of Energy on August 27, 2012.

Plaintiff Los Alamos Study Group filed a complaint for declaratory and injunctive relief under the National Environmental Policy Act (NEPA) and the Administrative Procedure Act (APA). Defendants were the National Nuclear Security Administration (NNSA), the United States Department of Energy (DOE), and the DOE secretary. The complaint alleged that the design proposed for construction of a nuclear facility at the Los Alamos National Laboratory had changed so much since the original environmental analysis that a new analysis was required and that all work on the facility should be halted until the conclusion of such analysis.

The district court dismissed the claims on two grounds: (1) that the case was not yet ripe because agency action (the Supplemental Environmental Impact Statement (SEIS)) was ongoing when the complaint was filed; and (2) that the plaintiff’s claims were prudentially moot because Defendants refrained from all construction on the Nuclear Facility until the SEIS analysis was complete. The Tenth Circuit agreed with the district court on the ripeness issue, and therefore did not need to address mootness.

 

 

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Tenth Circuit: Alleged Clean Air Act Violations Could Not Be Expected to Recur, so Case Is Moot

August 13, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in WildEarth Guardians v. Public Service Co. of Colorado on Friday, August 10, 2012.

The Tenth Circuit dismissed the appeal. Petitioner claims that Respondent’s “construction of a new coal-fired power plant in Pueblo, Colorado violated the [Clean Air Act] because [Respondent] failed to obtain a valid construction permit. . . . Although the project initially complied with all applicable federal and state laws when construction commenced in 2005, the regulatory landscape changed in 2008. A decision of the D.C. Circuit required regulators to impose additional Clean Air Act requirements upon new power plant construction. After the decision, [Respondent] worked with the relevant agencies to come into compliance with the modified regulatory regime while construction of the plant continued. [Petitioner] sued [Respondent] pursuant to the Act’s citizen-suit provisions, seeking civil penalties and an injunction to halt construction until [Respondent] complied with the Act.”

“While this litigation was pending, [Respondent] finished constructing the plant and came into compliance with the new regulatory regime. The district court dismissed the suit, reasoning that to find a Clean Air violation under the circumstances would be to give unwarranted retroactive effect to the decision of the D.C. Circuit. [Respondent] argues that [the Court lacks] jurisdiction to hear this appeal. It contends that since it is now in compliance with the Act, a court ruling could not redress any injuries [Petitioner] has suffered as a result of [Respondent]’s alleged violation. [Respondent] also argues [Petitioner] in effect has received the injunctive relief it requested because [Respondent] is now in compliance.”

Although the Court found redressability to be an inappropriate basis for dismissal here, Petitioner’s “claims nonetheless should be dismissed under the related jurisdictional doctrine of constitutional mootness. In most Clean Air citizen suits, mootness is difficult to establish because the plaintiff’s interest in deterring the defendant from future violations is sufficient to sustain a constitutional case or controversy between the parties. Under the unusual circumstances of this case, however, [the Court found Respondent]’s alleged Clean Air violations could not reasonably be expected to recur, and thus no deterrent effect could be achieved.”

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Colorado Court of Appeals: Series of Exchanged E-Mails Did Not Constitute “Meeting” for Purposes of Colorado’s Open Meetings Law

July 24, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Intermountain Rural Electric Association v. Colorado Public Utilities Commission on July 19, 2012.

Colorado Open Meetings Law—E-mail Exchanges—Summary Judgment.

This case raises the issue of whether e-mail exchanges among members of the Public Utilities Commission (PUC) regarding proposed legislation constituted “meetings” for purposes of the Colorado Open Meetings Law (OML). The Court of Appeals held that the exchanges did not constitute meetings and affirmed the trial court’s summary judgment in favor of defendants.

On March 15, 2010, a bill for the Clean Air–Clean Jobs Act (CACJA)was introduced in the House of Representatives. The next day, the director of the PUC provided testimony that the PUC did not oppose the legislation. Both Houses passed the bill and it was signed into law.

In early 2010, Kelly Nordini, a member of the Governor’s staff, e-mailed PUC Chairman Ron Binz seeking input on proposed language for inclusion in an earlier version of the bill. The language was suggested by Public Service Company of Colorado (PSCo). An e-mail conversation ensued among the Commissioners about the proposed legislation, and Nordini was copied on fifteen of eighteen e-mails. The content generally comprises edits to the draft legislative language and detailed discussion about the bill.

Intermountain Rural Electric Association (IREA) brought suit against the PUC, its Director, and the Commissioners in their official capacities, seeking a declaration that (1) the e-mails were “meetings” subject to the OML; (2) defendants violated the OML when they failed to provide notice of the meetings, make the meetings public, or enter an executive session; and (3) any formal action arising out of the e-mails was invalid.

Defendants moved for summary judgment, arguing the e-mails were not “meetings” under CRS § 24-6-402(1)(b). The trial court agreed and granted summary judgment in favor of defendants. On appeal, IREA argued it was error to determine the e-mails were not “convened to discuss public business.” The Court disagreed and affirmed.

The OML provides: “All meetings of two or more members of any state public body at which any public business is discussed or at which any formal action may be taken are declared to be public meetings open to the public at all times.” A “meeting” is “any kind of gathering, convened to discuss public business, in person, by telephone, electronically, or by other means of communication.” The parties agree that the exchange of e-mails was a “gathering” but dispute whether the e-mails discussed “public business.”

The Colorado Supreme Court has held that discussing public business (not defined in the statute) refers to a public body’s policy-making function. IREA claimed that the e-mails were part of the PUC’s policy-making process. The Court disagreed. It held that to prevail on an OML claim, a party must point to a pending action by the public body holding the meeting with regard to a rule, regulation, ordinance, or formal action by that public body that has a meaningful connection to the gathering in question. Here, the Court could not find that the hypothetical effect of providing input to the Governor’s staff with regard to draft language for a bill pending before the legislature, or advising a legislative committee that the PUC did not oppose the bill, constituted part of the PUC’s policy-making function.

The IREA argued that the e-mails were a “formal action” of the PUC because it is “authorized” to engage in discussions on pending legislative proposals. The Court stated that this argument failed to distinguish between “formal actions” of the PUC, which create public policy within the purview of the PUC’s policy-making powers, and other duties and actions of the PUC, which do not. Here, where the PUC was opining about potential legislation, it was not itself making public policy.

Summary and full case available here.

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Colorado Supreme Court: Public Utilities Commission Did Not Abuse Discretion by Striking Substantial Portions of Testimony

June 26, 2012 by Leave a Comment

The Colorado Supreme Court issued its opinion in Glustrom v. Colorado Public Utilities Commission on June 25, 2012.

Recovery of Costs—Unjust and Unreasonable Rate Order—“Used and Useful”—Exclusion of Testimony.

In 2005, with the approval of the Public Utilities Commission (PUC), the Public Service Company of Colorado (Xcel) began constructing a coal-fired electric power unit known as Comanche 3. When Xcel sought to recover a portion of its construction costs nearly four years later during a rate proceeding, Leslie Glustrom intervened. Glustrom sought to introduce testimony that Xcel acted improperly and, consequently, should not recover its costs. The PUC excluded most of her testimony, a ruling that Glustrom challenged. Glustrom separately challenged the depreciation rate and the possibility that Comanche 3 might not be “used and useful” at the time rates went into effect. The PUC denied her challenges, and the district court affirmed.

The Supreme Court held that the PUC did not abuse its discretion when it struck substantial portions of Glustrom’s testimony pursuant to the Colorado Rules of Evidence. Further, the depreciation rate approved by the PUC was established pursuant to law and in accordance with the evidence. The Court also held that the PUC was free to exercise its discretion in departing from a strict application of the “used and useful” principle. Glustrom failed to meet her burden in showing why such a departure here would result in a rate that is unjust and unreasonable in its consequences.

Summary and full case available here.

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