A group of high school students visited the Russell Smith federal courthouse last week and likely came away better educated than many state lawmakers.
Although they were unable to participate in the Portland General Electric Co. et.al. against NorthWestern Corp. et al. cases, their presence indicates that they were studying the basics of American civics. Judging by Federal Magistrate Kathleen DeSoto’s questions from the bench last Tuesday, some separation of powers lessons need corrective coverage at the state Capitol.
The case involved two bills by Sen. Steve Fitzpatrick, R-Great Falls, that passed last year. SB 265 would rewrite a 40-year-old contract so NorthWestern could have home court advantage in arbitration disputes with its co-owners of two aging coal-fired power plants at Colstrip. These co-owners wondered what right the Legislature had to rewrite an agreement that NorthWestern signed with eyes wide open when coal was king in Montana.
Now that the voters and taxpayers of these Washington and Oregon co-owners have legally decided to end investments in future coal burning, they have exercised their right to terminate the agreement through arbitration, as specified in the contract.
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This would effectively close the plant, unless NorthWestern and current operator Talen Energy find other investors. This is not likely, as Talen is already seeking loans to fund its bankruptcy proceedings. Nationally, about half of the coal-fired electric fleet has retired. In 2022 alone, operators will shut down about 15 gigawatts of coal-fired power due to age and growing incompetitiveness with the production of natural gas or renewable energy.
SB 265 moved the arbitration site from Spokane to Helena, changed Washington law to Montana law, and changed a sole arbitrator with demonstrated expertise to a three-person panel with no specified background.
The lead attorney for the Northwest Side argued that legislatures make such decisions about where and what the rules are all the time. DeSoto pointed out that the new rule was very different from what everyone had initially agreed. If that was OK, she asked, could the Legislative Assembly simply pass a law prohibiting the closure of Colstrip? Why not force a private company to ignore its own contract, its own local laws and its own self-interest with the stroke of a governor’s pen?
We would all like to avoid business gone bad. In this time of catastrophic climate change, there are many agreements committing us to burning fossil fuels that we need to find ways to break. But when we taxpayers, ratepayers and voters, in fact have an agreement that allows for such an improvement – signed by all owners in good faith – then the rule of law should not be subject to a rule change.
Which made the SB 266 debate even more incredible. This bill gave the Attorney General of Montana the power to impose daily fines of $100,000 on any co-owner of Colstrip who refused to pay its operating expenses without the consent of all owners. This was not in the original deal, which only required a majority decision from the owners (those currently suing NorthWestern).
DeSoto called the SB 266 “incredibly broad status”. Its wording appeared to make even the defense against payment “an unfair or deceptive practice in the conduct of business” subject to fines of $100,000. Several attorneys in the audience dropped their jaws when North West’s lead attorney replied that it was the court’s prerogative to clarify the law. For example, a judge might declare that “conduct” does not include “recommendation”. DeSoto called it “rewriting the statute”.
In other circles, it is also called “judicial activism” or “lawmaking from the bench”. Some in these circles have demanded big changes in the way judges are selected and the courts conduct their internal affairs to better reflect the will of the legislative or administrative branches of government. In the course of civic education, it is the chapter on the separation of powers.
Too bad the high school students couldn’t watch all of this in real time last week. They wouldn’t have found a seat – all the pews were full. But the only elected official in the room was the mayor of Colstrip, who was there as a ‘friend of the court’ arguing for letting NorthWestern break a deal it was not a party to, to force private companies to bail a near-bankrupt industry for its local benefit. DeSoto said that sounded like “the definition of economic protectionism.”
Those who insist on the rule of law and judicial independence should consult the transcript for some guidance on the consequences of botched legislation.