Comments from Professor K.K. DuVivier concerning a possible franchise with Xcel


August 3, 2020

Dear Council,

Tomorrow Ordinance 8410 is on the Consent Agenda for Council, and I strongly encourage you either not to vote this forward at all or only to move it forward if certain additional conditions are included to protect Boulder.

Let me explain briefly. I’ve closely reviewed the documents provided at the meeting link:https://boulder.novusagenda.com/agendapublic/CoverSheet.aspx?ItemID=3088&MeetingID=588

-Xcel will be getting a 20-year franchise as I warned earlier.  The opt-outs are worded in a confusing manner and also are so narrow.  As the Community Choice Energy bills have shown, only an opt-in would keep the door open for Boulder to either municipalize or keep other options open.

-The settlement agreement is not included in the materials provided, and as written, this ordinance is not contingent on reaching a settlement. Thus Boulder voters could agree to be locked into a 20-year franchise, and then Xcel could just walk away from any settlement, which it has done to others in the past.

-Some of my brightest former law students now represent Xcel, and I can see their mastery at work in the documents provided (without even seeing the settlement agreement).  In short, Xcel will be getting a new lucrative 20-year franchise, and Boulder will be getting little or nothing as Xcel has reserved itself easy excuses not to deliver such as lack of PUC approval or inability to get something through the legislature (not to mention its “extraordinary circumstances” language in the ordinance).

-Finally, you mention below that you might not support this if “municipal finances could see a change,” but this agreement does not clearly save Boulder money.  In fact, Boulder is still on the hook for any improvements that Xcel does not wish to agree to.

So, I hope that you will not allow this ordinance to be railroaded through by Xcel when it sees Boulder in a vulnerable position.  I am all for allowing our citizens to vote, but it is Council’s responsibility to get the facts and eliminate Xcel’s loopholes so that citizens are not taken advantage of during this vulnerable time.

Thanks again for your service on Council. We’re all in this together…six feet apart.

In solidarity,

K.K. DuVivier
Professor of Law
University of Denver Sturm College of Law

Access some of my articles at SSRN: http://ssrn.com/author=725005