After Boulder voters approved Ballot Issue 2C tin November 2020, which entered Boulder and Xcel Energy into a 20-year franchise agreement and paused the City’s pursuit of municipalization, several community members reached out to Boulder Weekly with concerns that the process wasn’t as transparent as it could’ve been.
So BW filed a Colorado Open Records Act (CORA) request for communications between City Council members, City staff and Xcel from the middle of July 2019 through the election. As is often the case in Colorado, our CORA request came with a hefty price tag: $1,050 for the City’s time to locate and review the documents for sensitive material.
Unable to devote that kind of money alone, BW launched a GoFundMe online fundraiser and within three hours, the funds were raised by you, the community, to get the records. After receiving and reviewing the hundreds of documents in our request, BW spoke with Council members involved in the negotiations, state lawmakers, citizen activists and Xcel representatives to put the documents in context. You can see all the documents at the end of the article here.
Together, the documents and our conversations depict a clearer, if not definitive, timeline of the City’s and Xcel’s negotiations. We also got a better sense of the motivations of City and Xcel officials at various points of the negotiation process. And, we got a sense of the questions about the agreement that still remain if Boulder is to reach its 100% renewable energy goal by 2030.
Here’s what we’ve learned so far. Thank you, again, to those who donated to help make this investigation possible.
Boulder Mayor Pro Tem Bob Yates first met with Xcel Colorado President Alice Jackson on July 19, 2019. Jackson assumed her position at the energy company in May 2018. The two were introduced by Tim Wolf, a Boulderite and Xcel board member, whom Yates says is a friend of his wife’s.
Yates says “nothing substantive” was discussed at that meeting — it was a meet-and-greet more or less, as he just stopped by the Xcel office on the way to a Rockies game.
“It was a very short meeting,” he says. “I met her in her office and it was very cordial.”
Jackson agrees, adding, “At that point in time, I know we had said, ‘You know, it’d probably be good to visit with a broader group just to continue to get to know [each other] and build relationships.’”
Yates then followed up with Jackson a few days later, looping in fellow Council member Sam Weaver and suggesting the three of them get together. Nothing came of it until later in the year, however, when Yates again emailed Jackson, letting her know Weaver was about to be elected mayor and that, “Sam Weaver and I believe that it may be constructive if the three of us meet.”
After several rounds of back-and-forth scheduling emails, eventually the three did meet, on Jan. 9, 2020 — Yates and Jackson at a restaurant in Boulder, while Weaver, who was sick at the time, called in. Yates’ notes from the meeting indicate plenty was discussed.
Yates writes that Jackson was “desirous of continuing dialogue, even if in parallel with litigation,” and that she expressed she had the authority to “commence discussions.” Topics at the meeting included community choice energy (CCE), local network distribution systems planning, and a mention of “time constraints (e.g. ballot measures).”
Weaver says his motivation for the meeting was to communicate with Jackson the sticking points, from his perspective, as to why earlier negotiations in 2017-18 with Jackson’s predecessor at Xcel ultimately didn’t amount to anything. This included Xcel’s secrecy around distribution planning and grid modernization, as well as his skepticism of the company’s ability to reach its goal of 80% emissions reduction by 2030.
Yates and Weaver both say this discussion was “non-substantive,” and that it didn’t include talk of a potential settlement agreement. The “discussions” outlined in the notes were about distribution systems planning, Yates says. None of the three could remember any talk of ballot issues, even though it’s in Yates’ notes from the meeting.
“Some of the collaboration around network planning and grid modernization that Alice and Sam discussed at the Jan. 9 meeting sounded potentially expensive to me and so I may have been considering whether it would be necessary to ask the voters for funding for that,” Yates says. “I really don’t recall.”
Of the meeting’s content, Jackson says, “I asked a lot of questions to try and get perspective. … It was really getting their take on where things were [and] why the relationship was where it was at.” It was the first time, she says, she had even heard of Boulder’s goals of decarbonizing, decentralizing and democratizing its energy future, which became key factors in later negotiations.
She doesn’t recall any mention of a settlement agreement at that meeting either — Weaver says she may have mentioned it offhand — but did say the end result of that conversation was to set up further meetings with City of Boulder and Xcel staff “to have a deeper conversation on distribution planning and how we move together on that one.”
Yates adds, “Sam and I asked Alice several times at that meeting whether the collaboration that she was proposing was conditioned upon the City slowing down or stopping the municipalization litigation and she said that it was not.”
After the meeting, Yates emailed Jackson on Jan. 11 telling her that he and Weaver would brief City staff on the meeting on Jan. 17 and that they would reach back out to her “to discuss next steps.”
The next meeting between the parties didn’t occur until April 20, according to both a review of the emails and comments from Yates, Weaver and Jackson. The meeting was arranged at the request of Jackson, according to emails from City Attorney Tom Carr, with the discussion to be focused on distribution planning. It included City staff members within the Climate Initiatives department, Steve Catanach and Jonathan Koehn, along with other Xcel employees. Weaver says the point of this conversation was for City officials to learn about Xcel’s distribution planning and how Boulder could have a seat at the table in the process — a key provision in the eventual settlement agreement and a major reason why previous negotiations with Xcel had fallen apart.
According to all three, Jackson asked Yates and Weaver to stay on the virtual call after this meeting, which is when she first explicitly mentioned the potential for a settlement agreement.
“I simply posed the question and I said, ‘OK, you’ve now heard how we approach distribution planning. If we were able to find a pathway to get you more comfortable with the decentralization conversation, we’re obviously making dramatic moves on the decarbonization side and that’ll be taking place at the Public Utilities Commission, should we open the door to having a conversation on how do we do this together again?’” Jackson recalls.
Yates says he and Weaver were “shocked” that Jackson “mentioned settlement, because we thought this was all about network planning and distribution.”
Weaver says select members of City staff were notified the day that Jackson had proposed settlement discussions. City Council was notified of the discussions on April 22, via a confidential memo from Carr. And a non-disclosure agreement (NDA) between the City and Xcel was executed on April 30; it included, among other items, ways the company could meet its 80% carbon emission reduction target by 2030 and an agreement not to use the proceeding negotiations in the ongoing municipalization litigation between the two parties. The NDA prohibits the City of Boulder, however, from publicly sharing any confidential information from Xcel, including the company’s emission reduction planning, even through an open records request.
The City and Xcel announced to the community that negotiations had commenced via a press release on May 12.
The early timeline is important in order to determine if anyone involved violated the City Charter or the Colorado Open Meetings Act. The latter requires meetings of three or more members of a “local public body” to be public. The Charter, meanwhile, requires that “all meetings of the council or committees thereof” shall be public. In a response to former Boulder City Council member Steve Pomerance, who raised the Charter issues, Carr wrote in an email “there is no precedent” to consider the meeting Yates and Weaver had with Jackson “to be meetings under the charter,” and thus, public. The idea, Carr wrote, is that the Council did not specifically refer negotiations to a committee, and Yates and Weaver were acting in an “informal advisory role without a delegation.” (This email was provided to BW by Pomerance separate from the CORA request.)
DIFFERENT THAN PRIOR NEGOTIATIONS
The City entered into settlement negotiations with Xcel four times over the last decade. Weaver was a part of the last round of discussions in 2017 and ’18, and says that experience helped inform discussions in 2020, particularly from a transparency standpoint.
“Could it have had more transparency? I think the answer’s always yes,” he says. “My lesson from 2017 and ’18 was that we didn’t do that early enough. We were having conversations, we were speaking with Xcel, but we never shared anything of substance until a few weeks before we had the hearing about whether to put it on the ballot. And I always regretted that and the community took away our executive sessions at the next election as a result of that.”
According to the Charter, City Council is prohibited from meeting in executive session but had special permission from voters to meet privately regarding legal strategy in pursuit of municipalization. In 2017, Boulder voters did not approve a ballot measure extending this privilege.
Jackson says she believes there was enough public outreach and conversation in the negotiation process this year, as the City held several listening sessions on the topic throughout the summer. Weaver agrees, adding that there were items from conversations with citizens that made it into the agreement, like counting all greenhouse gas emissions and not just carbon dioxide in Xcel’s emissions metrics. Still, some citizens would have liked to have been more involved.
“I think you can make the argument we could always have done it better,” Weaver says. “I don’t know how exactly we would have done it better except to have citizens at the table during the negotiations with Xcel. That was something they just were not going to allow. It would have stopped the discussions in their tracks to have had that condition.”
Yates and Council member Mark Wallach, for their part, agree the process was transparent.
“I felt as soon as there was something that was substantive and material and interesting to disclose, it was disclosed,” Yates says. “I think it was pretty public and pretty transparent. It’s kind of hard for me to prove a negative when someone says it wasn’t transparent. I’m like, well, tell me what you would have wanted in retrospect.”
Wallach adds: “I think we were pretty open and transparent in the process, except for the very initial stages when we were trying to find [whether] we’ll be talking to the wall or we’ll be talking to somebody who wants to actually engage and do a deal.”
The landscape in which the two entities entered negotiations was also different this year. The pandemic and subsequent financial limitations presented an opportune time for a compromise to be struck between the City and Xcel, even if none of the parties involved explicitly framed it that way.
“In a lot of ways, COVID was probably the motivating force here,” Wallach says. “The City is in financial difficulty and it becomes increasingly hard to say, we’re going to subsidize from the general fund $4 to $5 million a year of legal fees (for the muni effort) when our revenues are declining and we’re laying off people.”
Jackson says, however, the City’s potential financial issues did not factor into the company’s decision to enter settlement negotiations. From her perspective, as the relatively new president of the company, community engagement was a motivating factor, as was the lull in municipalization legal proceedings.
“We had a window of opportunity to have a conversation without ardently being in the litigation room,” Jackson says, given that PUC had already finalized what assets were on the condemnation list, district court proceedings were in a holding pattern, and key steps hadn’t yet been taken with federal regulators.
So the City and Xcel began the negotiation process, officially announcing it to the public on May 12.
TRANSPARENCY ON MESSAGING
Xcel had a hand in crafting how the City of Boulder was communicating the negotiations to its citizens. According to emails obtained by BW, on May 8, Yates told Jackson that language of the agreement is coming so the company can review it ahead of the public announcement. There are also some back-and-forth emails making sure the discussions stay under wraps until the public announcement. Later, on June 2, Yates tells Jackson that he’ll let her review his talking points for a public meeting: “I didn’t want you to hear it for the first time at Friday’s first public engagement session, and I will be happy to receive any suggestions you’d like to offer,” he wrote. And on June 27, Jackson sends changes to a PowerPoint slide to be presented at City Council.
On June 9, Jackson also sent Yates and Weaver language from Xcel’s agreements with other cities, as the two parties began to develop the franchise agreement. Jackson says the franchise agreement itself is relatively “cookie-cutter,” with the exception of the addition of the opt-out provisions at five, 10 and 15 years, as well as other times if the company fails to meet its emission reduction targets. The part of the agreement package that covers Boulder’s pursuit of local renewable energy projects in concert with Xcel wasn’t “copy and paste,” Jackson says, from other agreements with other cities, but it does share some “flavors.”
Weaver says this level of input was unique, because this partnership is unique, given that Xcel is a monopoly and Boulder partners with it to provide electricity whether in franchise agreement or not.
“It is that status that they have as a monopoly and that means, you know, on the bus or off the bus with them through a franchise or not, we operate differently in this messaging with them,” Weaver says.
“When you have two parties that are making a joint announcement on a pretty big deal, it’s not unusual for them to work on the language together to make sure that they’re in sync and aligned,” Yates adds. “I’ve seen that in the [corporate] world where you have a pretty big thing that’s been announced. And I think this was a pretty big thing. It was kind of abrupt, it was abrupt for me, certainly, and so I think everybody wanted to get it just right and make sure that they weren’t, you know, stepping on the other person’s toes or overstating things.”
He adds: “I don’t have an impression that Xcel was really driving the messaging around that; they were just cautious about a few points.”
Wallach, who was not involved in any of the email back-and-forth about language, says he isn’t concerned by how the two parties (Xcel and the City of Boulder) worked together on the language.
“This was going to be a prospective partnership between the City of Boulder and Xcel and how it is rolled out to the community, I think is of great interest to both parties. The idea here is to evolve from where we have been, which has been enemies at each other’s throat, to something that is more cooperative and hopefully more productive,” he says. “The fact that there was discussion between the parties as to how it’s to be phrased and how it’s to be announced does not bother me at all. I think that would be a normal procedure.”
However, Wallach was concerned about an uptick in the politicking around the negotiations in August, on the part of Xcel. In an email dated Aug. 19, just a few days before Council was to vote whether or not to put the franchise agreement on the ballot for Boulder voters, Wallach emailed Jackson about a public relations firm he says was hired by Xcel to recruit speakers for public meetings.
“I cannot overstate my distress to learn that Xcel is already taking steps to participate in this election,” Wallach writes. The two agreed to a phone discussion, after which the email chain trails off. When asked recently, Wallach says he was pleased with Jackson’s response to his concerns.
Jackson tells BW the company Xcel uses for public outreach, EIS Solutions (led by Josh Penry, about whom BW has written extensively, See “Behind the Curtain,” Sept. 17, 2015), likely subcontracted with the PR firm in question, which she says was tasked with encouraging public engagement before the election. She says she understood the concerns of those who thought it amounted to political campaigning, and it was a lesson for Xcel in learning more about the Boulder community. She apologized at the public meeting a few days later.
“It’s obvious that we didn’t recognize how important it was for non-engagement essentially in that process,” she says. “And so we apologized, we learned from it and we’re moving forward.”
In the final agreement, Wallach worked in language that prevents Xcel from campaigning or financing campaigns should either City Council or Boulder citizens hold a vote to opt-out of the franchise agreement in five years.
“The five-year, they really have no basis for contesting. That’s simply going to be a decision by the City of Boulder’s voters as to whether or not they think this has gone well,” Wallach says.
Even without Xcel involved, a robust campaign organized in support of the franchise agreement, spearheaded in part by Yates.
In August, Yates encouraged every Council member to speak with Jackson individually ahead of its vote on whether to send the agreement to voters or not. And when Doyle Albee, head of Boulder-based MAPR Agency, told Yates in an email he supports the efforts to get the franchise agreement on the ballot and is willing to help, Yates responded by encouraging Albee to join a “strategic advisory committee” for the campaign.
MAPR eventually helped launch the pro-2C campaign website after the majority of Council voted to put it on the ballot on Aug. 20. The day after, Yates wrote in an email to several dozen people that, “It never hurts to thank council members for doing the right thing and encouraging them to continue.”
To all this, Yates, who admittedly has never supported the municipalization effort, says:
“It’s not unusual for us on Council, if there’s a question coming before Council, for us to reactively or proactively work with members of the community. I mean, we’re members of the community as well, right? … And I thought this was a pretty good deal. I thought the staff did a good job on it. And I was bullish on it.”
The state also weighed in ahead of City Council’s vote to put the franchise agreement on the ballot via a familiar Boulderite: Will Toor. The former Boulder mayor, who’s now at the Colorado Energy Office (CEO), offered support in the form of a formal letter in conjunction with John Putnam at the Colorado Department of Public Health and Environment (CDPHE) on Aug. 4. In an email, attaching the letter to City Council, Toor urged “the full council to support this agreement, and outlining the statewide climate and clean energy benefits we see from this agreement, and providing our commitment to support its implementation, including through intervention at the Public Utilities Commission.”
He followed up separately to Yates and Weaver, offering to speak at the public meeting on Aug. 20, to which Yates responded, “My opinion is that this would be helpful.”
The state really shouldn’t have been involved, given Xcel, per state law, is the only utility at the moment authorized to provide electricity to Boulder and holds a monopoly over Boulder’s electricity, says state Sen. Steve Fenberg, who helped launch the muni effort in Boulder 10 years ago.
“It’s an odd thing for the state to be involved in. It’s very much a contractual relationship between a city and a utility,” he says. “And frankly, the state doesn’t give cities an alternative. … So it’s weird for the state to then be like, ‘I think you should sign this good deal with Xcel because we’re not allowing you to ever have any other deal.’”
Leslie Glustrom, a long-time muni advocate and PUC watchdog, adds that having both Weaver and Toor, both long seen as progressive energy leaders in Boulder, in support of the franchise could have made it seem more appealing.
“If Sam Weaver says it’s OK and Will Toor says it’s OK, then what’s the problem? It certainly creates an impression,” she says. Toor’s involvement also added clout to the 2C campaign, she says. “The 2C campaign made a strong effort to create the impression that Gov. Polis and his administration were supportive of a yes vote on the franchise.”
CLARITY ON LOBBYING and DISTRIBUTION PLANNING
Email conversations indicate Xcel asked the City of Boulder if it would be willing to lobby for issues, like Community Choice Energy (CCE), in concert with the company. City officials regularly remarked, internally, that retaining the right to lobby for certain issues was critical. This was especially true when it comes to CCE, for which Boulder’s state Rep. Edie Hooten has been leading the statewide effort.
“If we got to a place where CCE was actually enabled through legislation, then what it does is it gives communities who are served by [investor-owned utilities] the opportunity to contract directly with renewable energy sources,” Hooten says. “So that is a threat to [the industry] financially.”
An earlier version of a CCE study bill was tabled this year due to the coronavirus pandemic, but before that, on Jan. 23, Yates, on behalf of the City, testified in support of Hooten’s bill at the statehouse, a position neither he nor Weaver were willing to give up.
Still, an internal City email indicates that Xcel had asked the City of Boulder to run policy positions by the company first as part of the negotiations.
“As far as future legislation, we had a lot of conversations around, OK, let’s make sure we’re not undermining the partnership that we’re trying to build here,” Jackson explains. “What we ultimately came down to is the language that … says, look, if we know there’s a bill or a legislation that we’re going to take a position on that impacts the other party … and we’re going to take positions on it, what we’ve committed to is to use the established processes to try and notify each other of this is coming up, this is going on. It’s not a matter of we’re going to pass things by each other.”
The language in the agreement is loose. It says both Xcel and the City are committed to “establishing open and effective channels of communication regarding policy positions relating to electricity generation, transmission, or distribution in Colorado taken at the local, state, and federal levels,” and that “to the extent practical, both Parties agree to provide notice to the other of those public meetings where the specific policy positions relating to electricity generation, transmission, or distribution in Colorado before the Colorado General Assembly will be discussed.”
Yates doesn’t see an issue with this agreement, since the City is pretty clear on its energy goals. “I do very much remember them trying to persuade us not to take certain positions and us pushing back very, very firmly saying, ‘No, we reserve the right to take all positions,’” he says. “We have complete freedom to advocate on anything we want.”
The only thing the City and Xcel have already agreed to lobby together for is “abolishing or modifying,” according to Yates, the statewide 120% rooftop solar statute, which would allow people to add more than 120% solar capacity to their rooftops compared to their energy consumption for a year. The sticking point here, according to Fenberg, who is sponsoring a bill related to this in the next legislative session (beginning Jan. 13), isn’t “whether you get rid of the 120% cap or you expand or you increase it. The real question is the next question, which is what do you do with somebody’s excess energy?”
He continues: “During the campaign for the franchise that part of it was never discussed. It was just like, finally, we can all agree. The 120% rule is silly [but] why was it ever put in place in the first place? It’s not because it was some arbitrary number, it’s because Xcel wanted to limit their exposure and they don’t want people producing their own energy and then being able to share it. They want to be the one who provides energy to us. And that makes sense. That’s their business model.”
For Boulder, eliminating or altering the 120% rule is key in future projects and distribution as the City looks to become more resilient to wildfire and other natural disasters by establishing infrastructure like microgrids. Fenberg says he’s still negotiating with Xcel and other stakeholders in finalizing his bill and what will eventually be a part of it, the “tough conversations” occurring around what will be done with excess energy. But according to Jackson, Xcel and Boulder will have to agree on both sides of the discussion — both amending the 120% cap and what can be done with the extra energy. “It’s the whole kit and caboodle,” she says. “We have to line up on both pieces and that was discussed in our negotiations and in the settlement.”
Perhaps the biggest selling point of the franchise agreement is that Boulder, somehow, is going to be able to be able to reach 100% renewable energy by 2030 due to shifting attitudes about microgrids and distribution system planning from Xcel.
This is lined out in the energy partnership agreement, a document that has a list of projects Boulder and Xcel have agreed to consider working on to meet the City’s renewable energy goals, as part of the settlement and franchise agreement. Many who have reviewed it see only potential and prioritized projects, but no guarantees.
“The only real commitment is that they will talk to us. And that’s not a very big promise. I mean, it’s better than it was, but to me it’s not a very robust achievement,” Glustrom says. “Usually businesses talk to their customers. That’s kind of part of Business 101. And the fact that Xcel, as a monopoly, didn’t feel they had to talk to their customers is just a reflection in my mind of what happens when you let a monopoly run loose for a century.”
Weaver agrees there are no guarantees on a project-level — figuring out how to fund projects makes guaranteeing specific projects difficult — but there’s still a lot he thinks will keep Xcel engaged. He says Xcel can work with Boulder to launch pilot projects that it can then take to other communities; plus, he says, the energy industry is shifting rapidly toward renewables anyway, so the company will be motivated to work with Boulder to find projects that work for both parties.
Weaver also says the City will be integrated into Xcel’s distribution planning process, which enables the City to see how their system functions in an energy-flow context — something to which the City hasn’t previously had access, and a major point of contention in the municipalization fight.
Future local, renewable projects will be reviewed jointly by Xcel and City of Boulder leadership teams, including Jackson, meaning the City will still have to get approval for local projects from Xcel, and from the PUC, which may not approve costly projects in Boulder if it forces Xcel to spread those costs to other communities.
“What we agreed on was, here’s how we’re going to meet; here’s how we’re going to pick projects; here’s how we’re going to move them forward; here’s how they’re going to be potentially funded,” Jackson says. “And that repeatability piece is an important focus, not only for us, but you’ve heard it from the leaders in the City as well, is that they want to provide an example for others that actually helps others do what it is that have been the goals of Boulder.”
Weaver also points to another guarantee in the agreement: Xcel will pay to underground its power lines in Boulder, a costly endeavor that was put on hold during the ongoing municipalization litigation but would make the City’s electric grid less susceptible to outages and extreme weather. With voters approving the agreement in November, work on this effort has already begun, and per the agreement, Xcel will spend $15 million to complete it within the first five years.
But undergrounding ties into another aspect of the agreement: broadband, which Yates made sure to include. The agreement allows Boulder to use Xcel’s infrastructure to attach fiber for municipal broadband, which has also been on hold during the muni fight. Because Yates had requested that language, and because he previously worked for Level 3 Communications, from which members spun out to create Zayo Group, which recently was awarded a broadband contract in Boulder, and because Yates lists only “dividends” on his financial disclosure document, we asked if he would stand to benefit financially in any way from municipal broadband, or if he had stock in Zayo. To both, Yates said no.
CAN XCEL MEET ITS CARBON TARGETS?
That was the biggest question Weaver had before and during the early negotiations with Xcel. Through the NDA executed on April 30, the City saw how Xcel thinks it can get to 80% carbon emission reductions by 2030 based on 2005 levels, which is required by the state. Because it was under an NDA, it was redacted in our open records request and we don’t know exactly what’s in there — nor does anyone who voted for 2C — but Yates and Weaver say they saw enough to proceed.
“What I can tell you is they have plausible scenarios for making the targets, as far as I’m concerned,” Weaver says. “After our staff review and my independent look at their scenarios, I became convinced that they had plausible ways of getting there.”
Jackson says the City saw “possible permutations that could come out as the pathway forward” for Xcel to reach its 2030 carbon reduction requirements, but it wasn’t a step-by-step plan. That is still being finalized before the company is required to present its energy resource plan to state regulators at the PUC in March 2021. The reason, she says, it wasn’t possible for Xcel to make this information public so voters could judge it for themselves is because “when we make those announcements, there are real impacts.’’ Revealing the information to just one community could impact filings with the U.S. Securities and Exchange Commission (SEC), accounting standards or shareholders, she says, since Xcel is a publicly traded company, as well as other communities the company serves.
With that, we still don’t know if Xcel plans to close coal-burning plants in its portfolio, which Fenberg says would be the fastest way of reducing emissions. On Monday, Jan. 4, the company announced its plans to retire both units of the Hayden Generating Station in northwest Colorado by 2028, ahead of schedule. However, it has yet to change its plans for the Pawnee Generation Station and Comanche 3 coal-fired plants, both of which are slated to run for decades to come.
“I’ve had meetings with Xcel where they said they cannot meet their goals unless they are allowed to build large and expensive projects that rely on untested technologies. And when asking what those are, they talk about nuclear energy and they talk about carbon capture and sequestration and things like that,” Fenberg says. “That, to me means… they are going to try to get there in a way that is as profitable as possible because we actually do know how to get there. It’s actually not a mystery. You’ve got to shut down your coal plants. That’s the first step.”
Fenberg says, too, that “we’re going to do everything we can to make sure” Xcel can’t count wholesale energy clients that no longer buy energy from Xcel (but which still burn fossil fuels) toward its carbon reduction goal.
Jackson says wholesale wasn’t a big piece in its carbon reduction calculations. “We have a couple of customers that we were serving in 2005 from a wholesale perspective that we no longer serve. And the carbon associated with those customers is not included in the accounting for either the starting point or the ending point,” she says.
Both Yates and Weaver view the opt-out clauses built into the final agreement as the ultimate check on Xcel and impetus for the company to work with the City in good faith on local projects and to meet its carbon reduction goals.
“Just the press of walking away, because they’re not hitting their emissions targets or at year five walking away because they’re not a good partner on projects,” Weaver says, “that’s going to be worse than not having done this in the first place.”
The City can opt out of the agreement in 2022, 2024 and 2028 if Xcel fails to meet its carbon reduction benchmarks, or every five years starting in 2026 for any reason whatsoever. Council could elect to put an opt-out question on the ballot, or citizens can file a petition to do the same. According to emails BW obtained, there were some back-and-forth conversations between Jackson and City Attorney Carr about the timeline for citizen-initiated petitions in relation to when Xcel files its climate registry report. This resulted in the City building in an expanded timeline for an opt-out election, after it became clear there wouldn’t be enough time in a given year between when Xcel’s reports become public and when citizens would need to submit signatures for a ballot question.
Several people with whom we spoke believe if Xcel brings something to court, they’re going to win. So, what happens if the City claims Xcel hasn’t met its targets and Xcel says it has?
“They can contest the opt-out on emissions. If they want to dispute the science and the measurement, I think that’s not inappropriate,” Wallach says. “If we say you didn’t meet your two-year target and they say, well, but we did, and here’s why, they should have that opportunity to contest that.”
“Obviously there are the opt-outs in the franchise. But I have just seen enough of Xcel that I don’t trust them,” Glustrom says. “I’ve been in court five times with Xcel. I’m 0 for five and the attorneys are like, ‘Wow. The only rule that matters here is Xcel always wins.’”
Still, it was a difficult decision to put the agreement before voters. In the end, a majority of Council approved it, including Weaver and Wallach, who were on the fence about it. Weaver calls it “one of the more difficult decisions in my entire life,” and that he lost friends over it.
“I had to ask myself the question, what is good enough?” he says. “The reason this was hard for me was, if you’re going to be a policymaker there has to be something besides all or nothing that’s good or not. And what is that? What is that in this case, what is good enough that the voters should be allowed to decide for themselves?”
Although Weaver did vote to put the agreement on the ballot, he did not take a side for or against ballot measure 2C.
SO, IS IT GOOD ENOUGH?
Much of the judgment of this deal — from those involved in negotiations, from interested parties and from community members — will be delayed until critical parts of the agreement are executed.
“To me it met the threshold of good enough to take to the voters,” Weaver says. In his view, it gives Boulder a seat at the table, where it previously didn’t have one, and a pathway to meet the City’s 100% renewable energy goal by preserving its right to lobby at the statehouse for solutions like CCE.
“And we tied up a bunch of legal loose ends,” he says. “If we ever come back to [the muni], it’ll actually be easier than what we’re facing as we sat here today.”
Still, given all of the City’s messaging before the election on this agreement about how much the City extracted out of Xcel, there still isn’t much that’s going to push the energy giant toward sustainability more than what the state is already requiring it to do.
“We see their commercials, we see their billboards about how green they are. Most of that advertisement around those programs are things that we, as a legislature have required them to do,” Fenberg says. “So, will they do some interesting and cool and innovative projects with the City of Boulder? I hope so, but I also think we shouldn’t confuse that with them necessarily doing that out of the goodness of their heart. They’re doing it and probably will do it in a manner that guarantees that they benefit from those projects, whether it’s a return on their investment or something that solidifies their control over the City of Boulder and them being our monopoly utility for the future.”
And again, it’d be good to know how much it’ll cost burden to implement the types of projects the City needs in order to get to 100% renewables by 2030, especially since the cost of continuing to pursue the muni was a major selling point of this franchise agreement. Unfortunately, with no projects guaranteed in the agreement, it’s impossible to know.
“There’s a big gap between 80% carbon reduction and 100% renewable,” Glustrom says. “So there’s a big gap between where we want to be and where Xcel wants to be. And we have not a clue how we’re going to fill that gap. But the one thing we can be sure of is, on this path, it will be very expensive. This is not a low-cost way to achieve our goals because we’ll pay more for Xcel’s renewables than we should because they’re a monopoly … then we have a gap to fill, so that’s going to be very expensive. And Xcel said, we’ll try to help you find funding. If they fail, do we have any recourse? Absolutely not. And that’s the whole thing: a commitment to try is no commitment at all.”
But both the City and Xcel have cheered the opportunity this agreement presents to use Boulder as a trial area for new technologies and projects that the company can take to other communities. If it does, the City can be recouped for its expenses.
“The big goal here is not to get Boulder to 100% renewables. The big goal is to get everybody to 100% renewables,” Yates says. “I think that’s going to be a pretty big factor in deciding things. Not so much who pays for it or what the economics of it are, but are these things that can help other cities get to a higher level renewable energy.”
In the end, Boulder voters passed the franchise agreement with Xcel, including the energy partnership agreement with the list of possible renewable and innovative projects in a close vote. Time will only tell if Xcel can and will meet its emission reduction targets, and in a way that helps Boulder achieve its 100% renewable energy goals by 2030. But in all of this, the silver lining, according to Hooten, is the fact that under this agreement the door is still open for municipalization. And if the agreement hadn’t been on the ballot this year, voters would have been definitively deciding the future of the muni in 2021.
“I would have to say, that is a silver lining here, that if we were going to wait until next year to vote on how much money we’re willing to pay for their infrastructure, and if that failed, that would have been the end of the muni,” she says. “But at least here, we do have off-ramps and if we take an off-ramp, we can revisit muni. So it does leave the door open for that.”
BW will continue investigating this story as events warrant.
Click on individual links to see CORA documents provided by the City of Boulder.
All emails between Bob Yates, Sam Weaver, and Tom Carr or any combination thereof that mention a) Xcel b) franchise or c) muni or municipalization from July 1, 2019 to present (Nov. 13, 2020).
All emails between Bob Yates and employees of Xcel energy, all emails between Sam Weaver and employees of Xcel Energy and all emails between Tom Carr and employees of Xcel energy, from July 1, 2019 to present.
All emails between Carr, Yates, Weaver and Alice Jackson or any combination thereof from July 1, 2019 to present.
All emails between Bob Yates, Sam Weaver and Tom Carr and The MAPR Agency or any combination thereof from January 1, 2020 until present.
