No "Coal Hole"

I wanted to support the Highwood Generating Station coal plant, I really did. I truly believe that, in the right hands and under the right management, it could be a very good thing for our community.

I am convinced now, though, that this coal plant is probably not in the right hands and not under the right management. I have been working since the middle of December to try and locate very basic documents evidencing the transactions that form the basis for the the City of Great Falls' involvement in the coal plant and its proposed owner, SME.

While my frustration may show at times, I think that for the most part my efforts have been reasonable, polite, and calculated to illuminate the citizens' understanding of the transaction without overly burdening our employees. I have, however, finally been told: "No."

This "no," of course, raises the inevitable questions arising from all government secrecy. What is there within the governance of SME that our city government does not want us to see? (Because, you understand, the "no" I received most certainly came as no surprise to members of our government.) Why should the owners of 25% of SME not be entitled to see the basic documents regarding its structure and operation?

As a lawyer, we often work with presumptions to help us sort out evidence. The one I think applies here is this: "More satisfactory evidence would be adverse if weaker and less satisfactory evidence is offered and it is within the power of the party to offer more satisfactory evidence." In other words, when someone has the ability (and obligation) to offer information but refuses to do so, we can presume that the information not produced would be adverse. Applied to the instant situation, then, we can presume that the additional information relating to the transaction would not be viewed favorably by a majority of the citizens. We can presume that such information might operate to persuade the citizenry to act in a way contrary to the wishes of SME and the City, i.e., oppose the coal plant.

Therefore, I assume that the 2004 feasibility study would reflect poorly on the feasibility of building the plant. I assume that the documents providing for the governance of SME would render our proposed $128,000,000.00 investment risky. I have to oppose this transaction until convinced to the contrary.

I don't want to litigate. I think the people should decide by vote whether the coal plant goes forward. Hopefully, in the ensuing public debate prior to a vote, the City and SME would be more forthcoming with information in order to convince us that this is a good business deal.

So, I drafted a proposed initiative. The first draft is below.

AN INITIATIVE TO ADOPT AN ORDINANCE TERMINATING THE CITY OF GREAT FALLS’ INVOLVEMENT IN THE HIGHWOOD GENERATING STATION, COAL FIRED ELECTRICAL POWER PLANT.

Section 1, Title: This Ordinance shall be known as the “No Coal Plant Ordinance.”

Section 2, Purpose: The purpose of this Ordinance is to terminate the City of Great Falls’ Involvement in the Highwood Generating Station, Coal Fired Electrical Power Plant.

Section 3, Construction: This Ordinance shall be liberally construed as to promote its purpose.

Section 4, Definitions: For the purposes of this Ordinance, the following definitions apply:

a) “Contracts” shall mean shall mean any and all contracts, agreements, memorandums or understandings, express or implied, among or between the City of Great Falls and/or Electric City Power and any person or entity if the same relates, in any manner or fashion, to the Highwood Generating Station.

b) “Electric City Power” shall mean a Montana Corporation named Electric City Power, Inc.

c) “Highwood Generating Station” shall mean the 250 megawatt coal-fired electric generating facility located near the City of Great Falls, Montana, referred to in Resolution 9537, adopted by the City Commission of the City of Great Falls on or about December 6, 2005.

d) “SME” shall mean a Montana Corporation named Southern Montana Electric Generation & Transmission Cooperative, Inc.

Section 5, No Coal Plant: The City Manager of the City of Great Falls is hereby directed and authorized to terminate any and all contracts. In the event the City Manager reasonably believes that the termination of any such contract will result in a civil liability to the City of Great Falls in excess of $25,000.00, the City Manager shall raise the issue of the termination of any such contract or contracts for further review by the City Commission. In no event, however, shall such potential liability result in any further action contrary to this Ordinance.

The City Manager is further directed and authorized to take all steps necessary and appropriate in accordance with the terms of corporate governance of SME to terminate the City of Great Falls’ interest in SME.

The City Manager shall initiate the process contemplated hereunder immediately upon the effective date hereof, and shall thereafter work diligently to complete the requirements of this Ordinance at his or her earliest reasonable convenience.

Section 6, Effective Date: This Ordinance shall be effective immediately upon passage.

Section 7, Repeal of Resolutions/Ordinances: This Ordinance hereby supersedes all existing ordinances on the same subject and, in the event of a conflict between an existing ordinance and this Ordinance, the terms of this Ordinance shall control. Furthermore, the following shall be repealed as of the effective date hereof:

Resolutions/Ordinances (I still need to research this)

Section 8, Savings Clause: In the event any part or parts of this Ordinance shall be overruled by a Court of competent jurisdiction, the remainder of this Ordinance shall remain in effect if the purpose of the same can be preserved. The parts of this Ordinance shall, to the extent possible, be construed together to give all of it effect.

More later.