I shared the bullet points below today with a number of people here in Colorado Springs, which suddenly finds itself serving as Ground Zero in the Sierra Club’s war on coal. I thought it might be worth posting here as well, as a follow-up to my longer take on the situation.
I offer these points as an outsider to this process, based on my limited knowledge of what’s going on behind closed doors, which leaves plenty of room for certain assumptions being incorrect. But perhaps they will help those insiders much more closely involved in the process, and those outsiders trying to make sense of it, to more carefully think through what’s going on here.
For those coming to this new, much more background on these matters can be found in my earlier post on the secret Sierra Club talks.
• No actual lawsuit has been filed – all the city/CSU has received at this point is a threatening letter from a hyper-litigious green group, as part of the movement’s nation-wide crusade against coal.
• The letter in question contains a laundry list of unproven allegations, none of which may be valid or constitute a meaningful violation of regulations.
• The mayor thus has lent this group and its allegations unjustified standing and credibility by instructing his attorney to engage in negotiations – or what could be perceived as acts of preemptive capitulation on the city’s part – before any legal action has actually been taken.
• Why should the city/CSU cede anything to the Sierra Club given the circumstances just described? Would anyone, walking in off the streets with a threatening letter, be accommodated and negotiated with in this fashion? If not, why is the city/CSU giving such deference to this group? And what sort of precedent does it set?
• A bully appeased is a bully emboldened.
• If the Sierra Club is reasonable enough to temporarily back-off from its threatened suit, allowing the city to study the future status of Drake without that cloud hanging over its head, it should do so as an act of good will, without seeking or receiving any sort of concessions from the city. Acts of good will aren’t genuine if they have to be bought with concessions made in backroom negotiations.
• Getting into legal battles is always expensive and unfortunate. But sometimes fighting a lawsuit — to disprove false or reckless allegations or to call a bully’s bluff – is not just a necessity but the correct course of action.
• Typically, the time to negotiate with a plaintiff, if that becomes necessary, comes much later in the process, after the facts have been determined in court, a ruling has been made or a judge has requested mediation. It seems foolish, and arguably irresponsible, to be negotiating anything with the group before all the facts of the case are known and before any actual legal action has been taken.
• There can be no lasting or permanent truce with the Sierra Club on the issue of coal, or natural gas for that matter, given that opposition to both is now a declared and deeply-ingrained element of group and movement orthodoxy. We won’t negotiate a change in Sierra Club dogma. The only option is to fight it, with reason, facts and legal action if necessary. The group’s opposition to coal is non-negotiable. So why negotiate at all?
• Even if some of the allegations at some point are demonstrated to be technical violations of one regulation or another, we shouldn’t assume that the costs or consequences that result from such a finding will be so onerous that it will prompt the closure of Drake. That’s the Sierra Club’s goal. But the city and its utility, along with CSU ratepayers, must act with their own best interests foremost in mind. All this is likely to amount to — even if the group prevails on a few points — is fines that will be passed-on to CSU customers in the form of higher utility bills, for technical violations of obscure rules that had no significant impact on local air quality. The city’s past clash with the Sierra Club over Fountain Creek issues — a topic I address in my longer piece — offers a good example of the most likely resolution, if this is litigated.
• The mayor arguably lacks authority under the new city system to unilaterally override policy decisions made by the utility board, by in this case using his city attorney to enter into negotiations with an outside group that may effectively undermine, negate or reverse a course of action which a board majority has approved. The mayor does have contract approval authority at CSU, a major flaw in the new structure that ought to have been anticipated, which technically makes him a party to these matters. But whether he can or should use such authority to override a policy decision made by the board, or use his city attorney to negate or undermine those policy decisions through negotiations with outside entities not directly involving the utility board, is questionable. The mayor’s actions in this case appear to highlight a major structural flaw in the new system that must be corrected.