News continued from page 6 award for Best Bureaucrat along the way); he later served as chair of the PUC. Then-Governor Richard Lamm had earlier nominated Binz for a seat as a PUC commissioner, but because of Binz’s work fi ghting the Fort St. Vrain nuclear generating station in Platteville, Public Service Com- pany of Colorado rallied legislators to vote against his confi rmation. Binz eventually lost by just one vote; lawmaker Dodge was one of those who voted against him. That’s when Dodge sponsored the bill to create the Offi ce of Consumer Counsel. “The thinking behind it was that every spe- cial interest had lawyers before the PUC,” Binz recalls. “The steel mill in Pueblo had their own counsel every year. The mines in Leadville had their own counsel before the commission. And so the logic back then was: Where’s the people’s representative in all this?” After the bill passed, Dodge recom- mended Binz for the job. “That was really not his style at all,” Binz recalls. “But he had the bill, and he said, after voting against me for the commission, that I ought to be the consumer advocate, and that’s how it worked out.” Duane Woodard, a Democrat who was then the state attorney general, gave Binz the nod and set up a utility consumer advisory board. The board was informal, not written into any statute, and served as a place where WHERE THERE’S SMOKE... 8 While Jon Caldara is pushing to hold Xcel Energy accountable at the ballot box, Denver Injury Law, headed up by James Avery, has named the company as a substantial cause and negligent party in the Marshall fi re. The fi rm fi led a lawsuit on behalf of John Doe clients on March 31, but Avery has been working on the case since two days after the late December fi re that destroyed over 1,000 homes in Boulder County. According to the lawsuit, wit- nesses observed sparks and the ignition of a fi re in the vicinity of Xcel power lines. “On the morn- ing of December 30th, 2021, a wit- ness videotaped sparks fl ying out of a malfunctioning powerline near the Shell gas station on 1805 South Foothills Highway in the Eldorado Springs neighborhood of Boulder, Colorado,” the lawsuit says. “The sparks from the powerline ignited a ground fi re that came to be known as the ‘Marshall Fire.’” The suit argues that Xcel has an obligation to act responsibly but didn’t, causing the fi re to start or aiding in its spread. Even if other causes also contributed to the blaze, Avery says that Xcel should at least be held partially responsible. “Because of Xcel’s corporate policy of putting profi ts over public safety, Plaintiffs and others like them have had their homes, businesses, ranches, and farms damaged or organizations that conducted consumer advocacy had a voice. When Gale Norton, a Republican, became attorney general in the 1990s, she saw that the Utility Consumers’ Board was written into law and given the same powers as the Offi ce of Consumer Counsel, allowing the In 2021, the structure changed again when two bills passed through the legisla- ture. Senators Chris Hansen and Stephen Fenberg and Representative Tracey Bernett sponsored the fi rst: Measures to Modern- ize the Public Utilities Commission, which called for the PUC to consider disproportion- A second measure, sponsored by Fenberg, Senator Faith Winter and Representative Daneya Esgar, was the sunset bill for the OCC and renewed the offi ce until 2028. But the bill also renamed it the Offi ce of the Utility Consumer Advocate and made the Consumer Counsel the director of that offi ce, appointed by the executive director of DORA. The bill also removed the Utility Consumers’ Board’s independent powers, reorganizing it under DORA’s authority. Since DORA’s executive director is appointed by the governor, Caldara says the board is no longer an outside advocate but serves at the whim of the governor’s offi ce. “They are no longer independent,” he adds. “They work directly for Polis’s ap- pointees...so even your defender…is on the case to screw you.” But Binz says the realignment simply returns the board’s legal status to match its historic role of providing advice to the Utility Consumer Advocate. “In theory, the board had more infl uence over the policy,” he says. “In practice, I don’t think it really functioned that way. I would not suggest that it’s going to make a big difference in how things go.” Under the arrangement, the Offi ce of the Jon Caldara has plugged into an initiative taking on Xcel Energy. board to determine policy rather than just acting in an advisory capacity. At the same time, the OCC and the Utility Consumers’ Board were transferred from the Colorado Attorney General’s Offi ce to the Department of Regulatory Agencies. destroyed, lost income, money, and business, suffered signifi cant expenses and emotional trauma, and will spend years trying to re- build their lives and livelihoods,” the lawsuit contends. The plaintiffs are seeking compensation for losses including property, inconvenience and emotional pain and suffering. Avery ately impacted communities in its rulings, to focus on helping utilities implement the state’s renewable-energy standards, and to factor in the just transition away from coal when energy companies opted to close down such facilities. ties,” Xcel spokesperson Michelle Aguayo responds. “Our own investigation shows that our equipment in the area of the fi re was prop- erly maintained and inspected, consistent with our high standards, and we have not seen evidence that our equipment ignited the fi re.” But Avery has concerns about how Xcel conducted its internal investigation. “In this Utility Consumer Advocate and its director are still independent and not tied to electoral politics, Binz notes. In fact, Cindy Schonhaut retained her position as director, a job she’s held since 2014, even if the name changed. And Binz supports the other changes, too. When he was consumer counsel, the position’s focus was almost solely on rate increases. But that focus became out of date, He’s pressing on with what he calls “a The Marshall fi re destroyed over 1,000 houses in Boulder County. is working with Schack Law Group, a San Diego fi rm that Avery says told him that power lines are a consistent factor in cases such as this. “The cause of the fi re is still under inves- tigation, and we’re working with authori- case, the FBI got involved and cordoned off land and prohibited anyone from going into the land,” he notes. “The exception was Xcel was allowed to go in and trample all over the site. ... Our investigation was certainly hampered by that.” good old-fashioned investigation,” going to the burn site to talk with witnesses and ex- perts. “We bring an expert witness in who’s a forensic expert, whose job is to be objec- tive and look at all the possibilities, and that expert gave a very high degree of confi dence that Xcel Energy was substantially respon- sible for this fi re,” Avery notes. The plaintiffs are currently ap- plying for class certification; if granted, the fi re victims wouldn’t need to argue their cases individu- ally. Avery says he plans to pursue the lawsuit whether or not the victims become a class. Usually class certifi cation takes about six months from the fi ling date, but the decision could be delayed be- cause the 20th Judicial District recused itself from the case on April 8, without providing any reasoning. Now either a retired judge will be called upon to hear the case, or it will be transferred to another judicial district. In the meantime, Avery encour- ages people impacted by the fi re to document their losses now, before the passage of time makes pursuing legal action more diffi cult. “There are a lot of people that already probably know that they’ve been harmed and they’re not going to get compensated,” he says. “Most people should be talking to lawyers. Whether it’s myself or another law fi rm that’s interested in helping, we’re going to try to help people.” — CHESHIRE APRIL 21-27, 2022 WESTWORD | MUSIC | CAFE | CULTURE | NIGHT+DAY | NEWS | LETTERS | CONTENTS | westword.com INDEPENDENCE INSTITUE EVAN SEMÓN
