Initiative Pushing Xcel to Pay a Portion of Its Rates Survives Title Board Challenge

Jon Caldara wants to do something about Xcel.
Jon Caldara wants to do something about Xcel. Independence Institute
The proposed ballot measure that would require Xcel Energy to return a percentage of its profits to customers passed a Colorado title board hearing on April 29, surviving a challenge from Raymond Gifford, a former chairman of the Colorado Public Utilities Commission, and filed by Mark Grueskin and Thomas Rogers of the Recht Kornfeld law firm.

"The measure is so incomplete that it is incomprehensible and thus a title cannot be set," Grueskin and Rogers argued in their request for a re-hearing of the measure titled "Percentage of Utility Rates Paid by Investor-Owned Utilities." It was not clear to whom utilities would pay the required portion if the measure passed, the request noted, adding that Initiative 93 could even be read as a utility paying 5 percent of its rates to itself rather than to customers.

Gifford says he also pursued the complaint because he's concerned the measure could be unconstitutional, violating the Fifth Amendment, which guarantees that private property not be taken for public use without compensation, as well as a similar measure in the Colorado state constitution.

"Here, #93 requires investor-owned utilities to make a payment of at least five percent of all rates from their profits to an unspecified payee," the motion argued. "If the measure is interpreted to require those payments to be made to ratepayers, the PUC, or the State of Colorado, without just compensation, it would clearly constitute a taking, without just compensation, in violation of both the United States and Colorado Constitutions."

But the title board rejected those arguments. Gifford, who was the chair of the PUC from 1999 to 2003, served as first assistant attorney general in the Colorado Attorney General's Office and has been an adjunct faculty member at the University of Colorado, says he plans to appeal the measure to the Supreme Court.

A Supreme Court challenge doesn't worry Jon Caldara, who proposed Initiative 93 and continues to push it. “I found it flattering that Xcel’s well-paid surrogates were trying to block voters and ratepayers from having input on this discussion or being able to vote on it,” he says. “But they so far were unsuccessful, and I look forward to getting this on the ballot.”

If Initiative 93 makes it out of the state's highest court, the next step will be signature collection to qualify for the November ballot. The measure will need 124,632 verified signatures to qualify; proponents will have until August to acquire them.

Caldara is optimistic of the measure's chances, in part because he says some climate-change activists are voicing their support. “These are people that we don't usually work closely with, but it looks as though we might have a common foe in this corporatist monopoly,” Caldara notes.

But not all occupants of the green-energy space are rushing to support Caldara, who heads the Independence Institute, a libertarian think tank. In fact, some suggest that the measure should be considered with skepticism, given the Independence Institute's past actions.

In 2018, the Independence Institute organized a Coalition of Ratepayers to intervene in Xcel’s plan to replace two coal units at the embattled Comanche Power Plant with renewable-energy generation. Public records acquired by the Energy and Policy Institute, a watchdog organization dedicated to transparency in the fossil fuel industry, showed that the coalition was linked to a campaign by the Energy Policy Network, which was working for coal-mining interests in Wyoming. Those records included emails between Wyoming coal executives and the Independence Institute regarding activities of the Coalition of Ratepayers.

In April 2021, the Public Utilities Commission barred the Coalition of Ratepayers from intervening in Xcel’s resource planning process, partially because of the Energy and Policy Institute’s findings. And last month, Xcel submitted a new proposal to the PUC that calls for closing the last coal unit at the Comanche plant by the end of 2030.

“What the Independence Institute seems to be doing is campaigning against Xcel Energy's proposals to close coal plants and replace them with mostly renewable energy by using framing and messaging that purports that the motivation for the Independence Institute is about ratepayers,” says Joe Smyth, a research and communications manager for the Energy and Policy Institute. He adds that he's wondered if the Initiative 93 effort is similarly supported by out-of-state coal-industry dollars.

By the same token, Caldara says he's wondered if Xcel is paying for the challenge to the initiative. (Xcel did not respond to requests for comment.)  And like Gifford, he's presenting his role in this case as that of a "citizen." It's not an Independence Institute project, Caldara explains.

“They're related only in that I work for the Independence Institute and the Independence Institute has intervened on behalf of ratepayers to the PUC, and I also put this initiative forward,” Caldara says. He doesn't need the backing of the think tank, he suggests, because the measure will require “like, 28 cents worth of promotion” to pass because so many Coloradans are already worried about their energy bills.

Part of the reason those bills are so high, according to Caldara, is that Xcel is weaponizing the clean-energy transition to charge customers for renewable-energy infrastructure. But Smyth suggests that clean energy will reduce energy bills because the sun and the wind are free means of generating electricity, while coal and natural gas incur an extra cost passed down to customers.

Governor Jared Polis says those lower costs are in the works already.

“The transition to renewable energy puts money back in the pockets of hardworking Coloradans by protecting ratepayers from the high operating costs of coal plants, providing robust investments in rural Colorado for wind and solar generation, and increasing good-paying green jobs,” Melissa Dworkin, deputy press secretary for Polis says, in a statement issued on the governor's behalf.

Coal is Colorado’s most expensive form of energy generation, the statement notes, while wind and solar cost at least one cent less per kilowatt hour.

In 2021, Xcel made $1.6 billion in profit. At the same time, many consumers reported that their Xcel bills had skyrocketed. Caldara urges any Coloradan struggling with high energy bills to consider supporting this initiative.

“You cannot be seeing the increases that we're seeing in our bills and be okay with it,” he says. “The only group that's thrilled by it is Xcel.”
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Catie Cheshire is a staff writer at Westword. After getting her undergraduate degree at Regis University, she went to Arizona State University for a master's degree. She missed everything about Denver -- from the less-intense sun to the food, the scenery and even the bus system. Now she's reunited with Denver and writing news for Westword.
Contact: Catie Cheshire