Bargaining with Bullies Only Emboldens Bullies
Rumors persist in Colorado Springs that a secret deal is being cut between city officials and The Sierra Club, in response to the group’s threatened lawsuit against the city-owned utility company. But why? Why the need for all the secrecy if what’s being negotiated is in the public’s best interest? And why negotiate at all with the implacable zealots at The Sierra Club?
We all understand that appeasing bullies only emboldens them. And The Sierra Club, if you look more deeply than its folksy veneer, is a legal bully of the worst kind, which in this case may be trying to win through backroom deals what it’s unlikely to win in court. The group’s complaint against Colorado Springs Utilities, when one takes a closer look, seems like just another cookie-cutter anti-coal suit for which the group is infamous. The group is notoriously untrustworthy, as its former allies in the natural gas industry would attest, and it’s no friend to Colorado Springs, as several past legal clashes demonstrate (more on this later). I’m baffled, as a resident, ratepayer and former utility board member, as to why the city would let itself be intimidated by this gang of crackpots.
Resolving disputes through reasoned dialogue is always a wise course of action. But these aren’t people who can be reasoned with: they are dangerous ideologues, bent on crippling the nation’s energy sector, based on some catastrophist ideas about climate change. Shuttering the Drake Plant, if they succeed, would be just another of many pelts they can hang on their wall — a trophy they can put in their trophy case. The costs, risks and consequences for Springs ratepayers of caving-in to the group are potentially much more serious.
But at least we know this group’s agenda. It wants to end not just the use of coal, but of natural gas and oil. And it’s cranking-out such suits in cookie-cutter fashion, almost on a weekly basis, as part of its “Beyond Coal Campaign.” What’s far less obvious, troublingly, are the other agendas that may be at work in this case – agendas that have yet to come out from behind closed doors.
I’m not a lawyer, nor an engineer, but even a layperson can see that the group is engaged in shotgun litigation: throwing everything it can into a complaint and hoping something will hit the target. Nowhere is it alleged that the facility is out of compliance with federal or state pollution controls, making it menace to public health. All that’s claimed is that modernization and modifications made to parts of the plant over the years, dating back to the 1980s, weren’t all signed-off on by responsible regulatory parties. The suit claims, but would have to prove, that all these modifications degraded the quality of emissions coming out the chimney. But that’s just the allegation. One might think, if such allegations were true, that the cumulative impacts of all these allegedly-sneaky modifications would have brought Drake to the attention of state or federal clean air enforcers. That this hasn’t happened underscores the weakness of the club’s case.
The notice of intent to sue, sent the city on Sept. 17, catalogues a list of allegedly harmful pollutants that allegedly injure the “economic, aesthetic, health, spiritual and recreational interests of Sierra Club’s members,” all because of allegedly “major” modifications to the Drake plant that allegedly were made without permits. The alleged violations seem like a laundry list of minor and mundane modifications of the type any plant would do on a routine basis. In 1998, for instance, CSU stands accused of replacing a “feedwater regulator and stop valves” without permission. Sounds less-than-ominous. In 2004, plaintiffs claim that CSU did a “condenser tube replacement” to “make tubes compatible with new non-potable cooling water supply.” How changing-over from a potable to non-potable water supply for use in the plant’s cooling system would increase Drake’s output of pollutants is a mystery to me. But that’s the story and The Sierra Club is sticking to it—at least until it’s ruled as irrelevant by a judge or jury.
The list of such “violations” goes on for pages, as if the lawyers grabbed everything that could possibly look like a “major” modification and threw in it for good measure. The Sierra Club claims all these changes and upgrades constitute “major” modifications that somehow also increased plant emissions. But nowhere in the complaint, nowhere, does it spell out any actual violations of state or federal clean air standards. Why? Probably because there haven’t been any.
That all these were conscious acts of stealth, skullduggery and premeditated rule-breaking by CSU, as the complaint implies, is ridiculous. The plaintiffs obviously are engaged in spaghetti dinner-style litigating: throwing a bunch of allegations up against the wall and seeing what, if anything, sticks. If they prevail on a few minor technical points, they claim “victory” and get reimbursement of their legal fees, courtesy of that engraved invitation to sue called the Equal Access to Justice Act. Any fines or penalties that get assessed against CSU, if there are any, get paid by Colorado Springs ratepayers.
Whether the resulting costs would tip the scales in favor of shutting Drake—as the club hopes—is far from certain. The most likely result, even if the suit succeeds, is higher utility bills for local ratepayers, as a result of fines related to actions that happened years ago and had little to no real impact on local air quality.
One might think, given the supposedly-ironclad nature of the case against CSU, that the Perry Masons at The Sierra Club would be chomping at the bit to get this into court and get a verdict rendered, in order to safeguard the spiritual and recreational interests of its members. But a funny thing happened on the way to the Eco-Inquisition.
As recently reported by the Independent’s Pam Zubeck, just eight days after the plaintiffs issued a notice to sue, their Kentucky-based attorney, Robert Ukeiley, sent an email to the city, asking for a meeting, presumably in order to negotiate. Negotiate? Negotiate what? Given the emphatic nature of the Sierra Club complaint, and the damning allegations it contains, what’s to be negotiated? If CSU is so brazenly violating the aesthetic, spiritual and recreational interests of Sierra Club members, there’s nothing to debate and no compromise possible.
These don’t seem like the actions of a litigant anxious to go to court and see environmental justice done. They seem like the actions of shrewd operators who would prefer not to have to see the process through if they can win victories through wheeling and dealing. And the city, surprising, seems to be playing right into their hands.
Given the evident weakness of the Sierra Club’s legal case; given its eagerness to negotiate; given assurances from CSU officials that they can prevail in court; given the uncompromising nature of the war on coal; and given this city’s bitter and costly history of battling and settling suits with this gang of zealots – given all this, one can’t help but wonder what city officials hope to gain from such negotiations.
One possibility is that negotiations are aimed at halting or slowing ongoing installation of the controversial Neumann scrubber system at Drake (an initiative I supported while serving on the utilities board, in the interest of full disclosure). If there’s anything the Sierra Club hates more than coal, it’s clean coal. It’s become an article of green dogma that there’s simply no such thing as clean coal. It can’t be done, and there’s no use even trying it. The Neumann System, as a potential clean coal breakthrough that could prolong the life of coal plants by affordably reducing their environmental impacts, thus presents a dual danger in the eyes of Sierra Club types. Derailing development of the new technology, while also hastening Drake’s demise, would be a double victory for anti-coal forces. That might help explain why, with all the other anti-coal lawsuits on its plate, the group’s Grand Poobahs are jetting in from across the country to personally handle these secret negotiations.
And just who are we bargaining with when we try to strike a deal with The Sierra Club? Are these reasonable people of good faith, who can be trusted to hold up their end of whatever is agreed to? Is it really in the city’s best interest to bow to acts of legal and political intimidation? The answer to all these questions is “no.”
This city’s past experiences may help highlight why it doesn’t pay to settle or negotiate with the group. A past settlement between the two, stemming from a lawsuit the city declined to fight, required the city to spend $12 million paving part of the Pikes Peak Highway that had always been unpaved before. The Sierra Club claimed, but never proved in a court of law, because the city caved, that the unpaved roadway posed a risk to trout in nearby streams. The resulting drain on annual city expenditures, though seemingly modest when the “deal” was struck, loomed much larger during the worst of the city’s budget crisis, when dollars that might have been spent putting more cops on the streets, or funding other essential city services, were spent paving the road to Pikes Peak.
That should have put Colorado Springs on notice that we’re not dealing with reasonable people here, but irrational zealots, who will push an extreme agenda no matter the costs or consequences it imposes on others. And we learned that again when the Fountain Creek lawsuit came along.
In that case, as readers may recall, The Sierra Club jumped in with Pueblo County’s grandstanding DA Bill Thiebaut on a suit claiming Clean Water Act violations by CSU in Fountain Creek. But this one wasn’t settled or negotiated; it was fought out in court. And the results are instructive. The Sierra Club lost on most major points (after Thiebaut was thrown out of court because he lacked “standing” to serve as the water quality enforcer along the Fountain). CSU was forced to pay some nominal fines for past violations of minor consequence, so the group naturally claimed victory. But what the case ultimately demonstrated was that CSU had been taking substantial action to correct whatever problems existed long before club crusaders entered the fray.
Most of what was alleged in the original suit was unfounded. It was a frivolous, grandstanding, politically-motivated misuse of the court system – which is how much of group’s legal actions could be described. All the group really wants out of these exercises is headlines, and maybe reimbursement of legal fees, courtesy of the Equal Access to Justice Act. That’s good enough to convince Sierra Club members and donors that the group is doing Gaia’s work.
Sierra Club founder John Muir would probably be shocked by what the venerable old organization has become, if the eccentric old mystic could see it now. Muir’s influence has almost completely been eclipsed by that of Marx, Malthus and Machiavelli. The sort of hands-on conservation Muir championed, aimed at preserving great landscapes for every generation of Americans, has given way to a nutty, rabid, litigate- and regulate-everything juggernaut that does virtually no hands-on conservation, but instead pursues its goals through legal action, lobbying and political intimidation. It still has local clubs, with members, who organize nature hikes and provide the semblance of a grassroots veneer for a powerful lobbying and lawsuit-generating machine almost without parallel.
That the agenda is top-down, not bottom-up, is illustrated by the fact that no local Sierra Club representatives have been sitting in on the secret meetings with the city. Those attendees, instead, have jetted-in from out of state. The group’s attorney isn’t a local, or even a Coloradan, but a hired-gun from Kentucky, who has a thriving practice rolling-out suits, assembly-line fashion, for the club. The group’s attack on Drake doesn’t stem, in short, from any local or regional environmental concerns, which trickled-up the food chain and swung top Sierra Club brass into action. This comes from the top, as part of a well-orchestrated national effort to shut-down every coal plant in the land, irrespective of the costs or consequences for local or regional ratepayers. Local Sierra Club members are just there to serve as window dressing. And they do it very well.
The Sierra Club is not just leading the crusade against coal, of which the attack on Drake is a part. It also opposes the continued use of oil and natural gas, potentially leaving the country with a gaping energy deficit that the group plans to fill using wind mills, solar farms and other not-ready-for-primetime energy technologies. The group has dozens of lawsuits going at any one time, as anyone will see by googling Sierra Club and lawsuit. How many lawsuits, and how great a burden they are placing on a clogged court system, is unknown. The group isn’t enthusiastic about sharing such details. But there’s little doubt that The Sierra Club, working solo or through one of its legal spinoffs and surrogates, is among the top 2 or 3 green litigation machines in the country. The Sierra Club is also a big player in the game of money and endorsement politics, filling the campaign coffers of friends and attacking its perceived enemies, with every tool available to most political machines.
What does the Sierra Club oppose? Virtually every vestige of modern industrial society is on its hit list, including freeways, pipelines, water projects, transmission lines, refineries, mines, dams, power plants, etc. Indeed, it often seems to be on a mission to repeal the Industrial Revolution. What does the group support? Wind power and solar power, when and where they don’t impact tortoise habitat or harm migratory bird species. It supports the eviction from public lands of nearly all profit-making activities, setting them aside exclusively for passive recreation and pantheistic worship. It supports the boundless expansion of the regulatory superstate, irrespective of whether the accretion of new rules and regulations is cost-effective, sensible and accomplishes anything. It supports the centralization of all federal land decisions in Washington, because that’s where its own lobbying clout is most concentrated. The Sierra Club, in short, has evolved into an industry as large, arrogant, willful and self-interested as any of the other “industries” it uses as a bogeyman or foil.
There can be no lasting or permanent truce between the City of Colorado Springs and the Sierra Club, if we and our city-owned utility continue to use fossil fuels in our homes, businesses and power plants. If we swear-off all coal tomorrow, the group will be gunning for our natural gas plants the day after tomorrow. As with all bullies, any acts of accommodation or appeasement on the city’s part will only reward such behavior and invite further aggression.
If the city has been operating Drake legally, as top CSU officials insist, and it’s in compliance with all regulatory standards, it has nothing to fear from such a suit. It should call the club’s bluff and take the matter to court. That’s the costly but correct thing to do. That this isn’t happening suggests one of two things. Either the utility has been consciously, reckless, systematically disregarding regulations for decades, with no one noticing until now – a scenario I find far-fetched — or some ulterior motives and agendas are being served by appeasing the bullies at The Sierra Club. The secrecy that continues to shroud these negotiations hints that the second scenario is much more plausible.