Knowing When to Quit
July 20, 2009 12:40 PM
It's an understatement to say that I don't like the Public Service Commission's recent decision to place a big power line on the Beltline. If I thought we had a chance to overturn that decision I'd ask City Attorney Mike May to carry on the fight to the next level, no matter the cost.
But after careful consideration and discussions with Mike, I've reluctantly come to the conclusion that our chances are so slim that it's just not worth the investment of scarce city resources to challenge the PSC decision in court.
The city attorney has outlined his reasoning in a memo to me and the Council. His fundamental point was that we're beyond a continued discussion of the merits. Instead, as per precedent and state law, the courts will look only at procedure and the adequacy of the PSC's reasoning. Mike finds no likely procedural errors and the standard for overturning based on the adequacy of the PSC's reasoning is very high. A court would need to find that no reasonable person could reach the conclusions reached by the PSC. In his memo May writes:
"While (frustrations related to the PSC's ruling on the merits) may be justified, they hardly amount to a showing that no rational or reasonable person could have come to the conclusion that the Commission came to in this case, nor do they constitute a legal foundation to challenge the PSC Order… I conclude that while the City fought the good fight, the fight should come to an end."
I respect those who disagree with that conclusion, and I fully understand the deep frustration with the PSC's decision because I share it. Nonetheless, the question for city policy makers is about whether or not it makes sense to invest the resources of a city attorney's office that is dealing with issues such as getting after bad landlords, or to spend scarce tax dollars on private counsel when the chances of success are so remote. I conclude that it's not responsible to do that. As much as I hate to say it, I believe it's time to end the fight.