“What am I supposed to do now?” Leslie Weise asked Tuesday morning at a downtown coffeehouse.
She was still fuming about the latest roadblock in her ongoing attempts to obtain information from Colorado Springs Utilities. In an earlier email, Weise had shared the bad news: She’d lost in court.
The object of her open-records quest that was first denied by CSU and then by local courts: a written report and PowerPoint presentation prepared by AECOM Technical Services, which, using raw (and publicly available) emissions data from the Martin Drake downtown power plant, developed “certain air quality information.” That information, Weise believes, ought to be publicly available.
“In my open-records petition,” she wrote, “Judge [Edward] Colt has ruled that utilities’ lawyers could in fact use the attorney-client privilege to shield the public from being able to access air quality information concerning an EPA [Environmental Protection Agency] review of the Martin Drake Plant. Drake was identified as one of the two most polluting plants in the state subject to this review, yet utilities has chosen to keep this critical information, concerning whether it is in compliance with safe levels of sulfur dioxide emitted from the plant, from its own ratepayers and the very public that breathes this air…”
The judge saw the issues differently.
“The court finds that CSU reasonably anticipated litigation and adversary proceedings to be held before administrative agencies,” Colt wrote in his decision. “CSU has carried its burden to show that the information at issue in this case was requested by its lawyer in order to prepare for such litigation and adversary proceedings, and that the information was used for these purposes, not for its regular business purposes … the court finds that the information at issue in this case was properly withheld by CSU under the provisions of the Colorado Open Records Act which protect privileged information, such as in this case attorney-client and attorney work product.”
Colt also noted that in issues yet to be decided by the state’s Air Quality Control Commission and the EPA, “based on the past position of the parties … it is clear that [Weise] will urge a different classification of the power plant than the designation which will be urged by [CSU].”
Weise and Colt might both be right.
While CSU has a legal right to withhold such a study, it’s fair to wonder why it chooses to do so. Do AECOM’s conclusions contradict past assertions made by CSU managers regarding air quality? And if so, would releasing the report not only embarrass CSU management but potentially expose the municipally owned utility to fines, regulatory difficulties or even mandate early closure of the plant? If so, delaying the release of such damaging material might at the very least buy some time.
Even more to the point, shouldn’t area residents exposed to possibly toxic pollutants be entitled to see a ratepayer-funded study that might help them understand the extent of such pollution?
The decision not to share the information was presumably ratified by City Council, acting as the utility board in executive session. Why? We may never know. It follows that if the study is confidential, then the reasons for maintaining confidentiality must be kept secret as well.
It’s a sorry state of affairs, one that is rooted in a bad bet that CSU made more than a decade ago.
Managing a four-service utility requires a rare degree of prescience. You have to accurately forecast long-term demand for water, gas and electricity. Managers must also correctly estimate future prices of natural gas, coal and purchased power. You also have to understand the future regulatory environment, especially if you operate coal-fired generators.
For decades, natural gas prices had seesawed unpredictably. The long-term trend line seemed to point to continued volatility and increasing prices. So CSU managers, with board approval, continued to hedge gas purchases against upside volatility, decided to retain the Drake plant indefinitely and installed emissions control systems to comply with state and federal regulations.
Thanks to shale gas, natural gas prices declined sharply. The regulatory environment tightened, the cost of compliance soared and CSU has had to play a losing hand ever since. Closing Drake in the near term would leave CSU with hundreds of millions in stranded costs, while keeping it open has angered many residents and downtown advocates — and Weise says they’re not going away.
“One thing I can assure Utilities whether or not it intends to continue to operate in secrecy,” she wrote, “is that there are many members of the public who will not stop in our mission to ensure that air quality from the downtown Drake Plant is safe for the public.”