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This May 12, 2003 file photo shows the power plants of Colstrip.

Montana’s attempt to influence a key decision on Colstrip’s future has been ruled irrelevant and too late to matter by an administrative judge.

Judge Dennis Moss has shelved Montana Attorney General Tim Fox’s attempt to influence a Washington utility’s plans for shutting down Colstrip Units 1 and 2, saying that most of the points submitted on Fox’s behalf are irrelevant. Moss called the Republican attorney general’s expert witness unqualified.

The ruling comes from Washington state, where Colstrip’s largest stakeholder, Puget Sound Energy, is laying out a multi-year plan for future rates and the not-too-distant shutdown of Colstrip Units 1 and 2. The four-unit power plant in southeast Montana is one of the largest coal-fired generation stations in the West.

Those rates, to be set by the Washington Utility and Transportation Commission, speak to the expected costs of Colstrip's partial closure and environmental cleanup, among Puget's other costs of business. Moss is an administrative judge for the WUTC.

The power plant’s oldest two units are slated for shutdown within six years. The economic loss associated with shuttering the two units is expected to surpass $500 million within three years of the units’ closure.

Puget suggests a shutdown date of 2037 for Colstrip Units 3 and 4. Fox has insisted that those units shouldn’t be part of the discussion, though Moss ruled that argument incorrect and said it was presented too late.

Utility commission staff attorneys, along with the Sierra Club, had asked Moss to strike Montana's testimony.

Fox’s attempts to influence Puget’s plans have been hampered by a June 30 deadline for recommending changes to Puget’s proposal. The attorney general made no recommendations by that date. Later attempts to influence the process by providing expert witnesses have been ruled too late.

Fox’s decision not to make recommendations to Puget Sound Energy’s proposal angered Montana legislators, who set aside $80,000 for Fox to defend the interests of Montana and Colstrip, and directed the attorney general to follow through.

In early August, Montana attempted to make its case by submitting testimony from Department of Justice staff attorney Patrick Riskin. Testimony supposed to come from expert witnesses challenging the testimony of experts provided by other parties in the case, of which there are several. Riskin’s testimony was anything but expert, Moss ruled. The state’s attorney had no experience in utility matters.

Moss ruled Riskin’s testimony “procedurally flawed and untimely. To the extent his testimony touches on issues before the Commission in this proceeding,” the judge said, "Those issues were raised, or at least suggested, by the PSE in its direct case. The opportunity to respond to such testimony was on June 30, 2017.”

The record will show that Montana submitted something, but neither that submission, nor the exhibits the attorney general submitted to back it up, will be put to use in deciding Puget Sound Energy’s general rate case, Moss ruled. In other words, the official record will show Montana offered no evidence.

“The judge is saying, ‘It’s been submitted, it’s findable later. It’s going to be published, but it’s not going to have any bearing on this proceeding,” explained Samuel Panarella, a University of Montana Law School associate professor specializing in energy law.

But, Fox’s staff called Moss’ ruling a win.

“We are pleased the Washington Utilities and Transportation Commission accepted Montana’s testimony into the overall record of the Puget Sound Energy rate case. This decision was a win for Montana and Colstrip,” said Fox press secretary Eric Sell, in an email.

The Gazette requested comment from Fox, but there was none provided, nor a reason given. These are the questions that went unanswered:

Moss has found that Montana’s expert witness lacks any qualifications as an expert witness.

Question: Why did the attorney general’s office choose to not use the testimony of experts who could offer factual testimony on issues relevant to reasons offered by DOJ for intervention, such as remediation and decommission costs, and “Montana’s substantial interest in the economic issues to be addressed,” as mentioned Feb. 6 in the attorney general’s petition to intervene on behalf of Montana.

Question: The judge is saying that the time for testimony of the kind submitted by the Department of Justice on Aug. 9, was June 30. The attorney general’s office has said that it intentionally didn’t file testimony by June 30. Explain again why DOJ chose not to file and whether that decision is proving to be useful.

Moss states that “Risken’s testimony is largely irrelevant but to the extent it can be considered relevant, it is immaterial. It would in no way contribute to the Commission’s ability to determine any fact in dispute in this proceeding.”

The judge goes on to note the irrelevance of the several specific arguments made by the attorney general’s office.

On the matter of whether the retirement of Units 3 and 4 are an issue in this general rate case, Moss says the attorney general is simply incorrect in suggesting the units should be left out, given that Puget Sound Energy included a closure date in its filing. Moss said this challenge should have been made by the June 30 deadline.

Question: Why didn’t the attorney general address the depreciation schedule of Units 3 and 4 as it was presented by PSE in the utility’s pre-filed testimony? PSE included the depreciation schedule of those units. If the attorney general’s office didn’t think it should be included, why didn’t it make that case in June?

The hearing of Puget’s rate case begins Tuesday. Montana will have an opportunity to file a post-hearing brief by Oct. 2. Will the attorney general be filing an initial brief in this case by Oct. 2?

Question: Moss is allowing the attorney general’s office narrative as part of the record, but not as evidence to be considered. Describe the usefulness of a non-evidentiary submission in a proceeding. Explain why the attorney general’s office believes this non-evidentiary designation is a win.


Agriculture and Politics Reporter

Politics and agriculture reporter for The Billings Gazette.