Doubling down: Lawsuit aims to overturn will of Colorado voters on clean energy
On April 6, the American Wind Energy Association (AWEA) issued a press release strongly criticizing a lawsuit filed by the American Tradition Institute (ATI) challenging the constitutionality of Colorado's Renewable Energy Standard (RES). The Colorado RES was passed in 2004 by the voters in a statewide referendum.
In correspondence a few days earlier, an AWEA member had asked Ron Lehr, an AWEA consultant who is an attorney and former chair of the Colorado Public Utilities Commission, for his opinion of the suit. This was his response.
I read this complaint last week.
Just about every anti-wind idea you could imagine is included: cost, pollution, interstate commerce, birds, and even Dr. Pierpont on sound.
On cost, the commission appointed by previous Republican Governor Owens found unanimously, after extensive public record litigation of the issues, that my client GE Wind’s Colorado Green wind project near Lamar, Colorado was the lowest cost generator bid to Xcel (which had turned it down twice previously), save one small hydro project. That was in 2001. The wind project, at $32.50 per mWh, breaks even when natural gas is at $3.50. When gas is about $4.20, as it is today, Xcel consumers benefit. We documented the case: Lehr, R. L.; Nielsen, J.; Andrews, S.; Milligan, M. (2001). Colorado Public Utility Commission's Xcel Wind Decision. 12 pp.; NREL Report No. CP-500-30551. The paper is posted on the National Renewable Energy Laboratory web site (www.nrel.gov) at: http://www.nrel.gov/docs/fy01osti/30551.pdf.
Xcel is on the record in several venues (Colorado commission and FERC among them) attesting to their view that wind saves money for consumers. What costs more is solar. To pay for the small solar set aside in Amendment 37, Colorado consumers are paying more to see if solar costs (both internationally set manufacturing costs and local installation and related costs) will come down as the solar market increases. We have good evidence that these solar costs are coming down just exactly as we hoped they would.
On pollution, the plaintiffs use the idea of stop and go driving to illustrate the findings of the discredited Bentek study [this refers to a controversial study of wind power's pollution offsets performed for the Independent Petroleum Association of the Mountain States, a fossil fuels group]. The study misses the fact that wind parks the car.
On interstate commerce, they don’t do much with the common legal tests that determine when an impermissible impact can be found. Here’s one formulation of those tests:
Any state law which affects interstate commerce must be:
(1) rationally related to a legitimate state concern and
(2) the burden on interstate commerce must be outweighed by the benefit to the state’s interests.
In determining whether the burden is outweighed by the benefits, a court must examine whether the state objective could be achieved by a means less restrictive on interstate commerce . Furthermore, it is important to note that promoting the economic interest of its own citizens at the expense of out-of-state citizens is not a legitimate state objective.
These legal tests about the commerce clause will most likely be the grounds on which the State of Colorado, represented by the Attorney General, John Suthers, a Colorado Springs Republican, will defend the statute, in my judgment. Since the complaint asks for declaratory and injunctive relief, it will be fought as a legal matter on paper, at least in the early rounds, rather than in a trial. The case in defense of the statute looks pretty strong to me, but it might make sense for the wind industry to take some steps to defend it rather than relying solely on Attorney General Suthers.
On birds, sound, and the rest of the allegations in the complaint, you know the story: yes, wind has impacts, but they are manageable with good planning and proper development.
John Adams said something about facts being stubborn things. They will have to be to endure this avalanche of fossil-fueled propaganda.