Colstrip case shows results of sloppy law | Editorial | missoulian.com - Missoulian
A group of high school students visited the Russell Smith Federal Courthouse last week, and probably came away better educated than many state legislators.
Even though they didn’t get to sit in on the Portland General Electric Co. et.al. vs. NorthWestern Corp. et.al. case, their presence indicates they were studying basic American civics. Judging by Federal Magistrate Kathleen DeSoto’s questions from the bench last Tuesday, some separation-of-powers lessons need remedial coverage at the state Capitol.
The case involved two bills from Sen. Steve Fitzpatrick, R-Great Falls, that passed last year. SB 265 would rewrite a 40-year-old contract so that NorthWestern could have home-court advantage in arbitration disputes with its co-owners of two aging coal-fired power plants at Colstrip. Those co-owners questioned what right the Legislature had to rewrite a deal NorthWestern had signed, eyes wide open, back when coal was King in Montana.
Now that the voters and ratepayers of those co-owners in Washington and Oregon have legally decided to end investment in future coal-burning, they have exercised their right to end the deal through arbitration, as specified in the contract.
That would effectively close the plant, unless NorthWestern and current operator Talen Energy could find other investors. That’s not likely, as Talen is already seeking loans to fund its bankruptcy proceedings. Nationwide, about half of the coal-fired power fleet has retired. In 2022 alone, operators will shut down about 15 gigawatts of coal-generated electricity due to age and increasing uncompetitiveness with natural gas or renewable energy production.
SB 265 moved the site of arbitration from Spokane to Helena, changed Washington law to Montana law, and switched a single arbitrator with demonstrated expertise for a three-person panel with no specified backgrounds.
The lead attorney on the NorthWestern side argued that legislatures make such venue and rule decisions all the time. DeSoto pointed out the new rule was vastly different than what everyone originally agreed to. If that was OK, she asked, could the Legislature just make a law prohibiting the Colstrip closure? Why not force a private business to ignore its own contract, its own local laws and its own best interest with the stroke of a governor’s pen?
We’d all love to wiggle out of deals gone bad. In this time of catastrophic climate change, there are a lot of deals committing ourselves to burning fossil fuels that we must find ways of breaking. But when we ratepayers and taxpayers and voters actually have a deal that allows such an improvement — signed by all the owners in good faith — then the rule of law should not be subject to a change of rulebook.
Which made the debate over SB 266 even more incredible. This bill gave the Montana Attorney General power to levy daily $100,000 fines against any Colstrip co-owner who refused to pay its operating costs without consent of all the owners. That wasn’t in the original deal, which only required a decision by a majority of the owners (the ones currently suing NorthWestern).
DeSoto called SB 266 “an incredibly broad statute.” Its wording appeared to make even advocating against payment “an unfair or deceptive practice in the conduct of trade” subject to $100,000 fines. Several lawyers in the audience dropped their jaws when the NorthWestern lead attorney replied it was the court’s prerogative to clarify the law. For example, a judge could declare that “conduct” did not include “advocating.” DeSoto called that “rewriting the statute.”
In other circles, that’s also called “judicial activism,” or “legislating from the bench.” Some in those circles have demanded big changes in the way judges are selected and the way courts manage their internal affairs to better reflect the will of the legislative or administrative branches of government. In civics class, that’s the chapter on separation of powers.
It’s unfortunate the high school students didn’t get to watch all this in real time last week. They wouldn’t have found a seat — every bench was filled. But the only elected official in the room was the mayor of Colstrip, who was there as a “friend of the court” arguing in favor of letting NorthWestern break a deal he wasn’t party to, to force private businesses to save a near-bankrupt industry for his local benefit. DeSoto said that sounded like “the definition of economic protectionism.”
Those who insist on the rule of law and judicial independence ought to review the transcript for some pointers on the consequences of sloppy legislation.
source: https://missoulian.com/opinion/editorial/colstrip-case-shows-results-of-sloppy-law/article_7624554c-0636-521b-b358-252448791f19.html
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