The Arkansas Court of Appeals today overturned Public Service Commission approval of a construction permit for SWEPCO's proposed power plant in southwest Arkansas. Inadequate assessment. It ordered a new PSC hearing on environmental and other issues.
Glen Hooks of the Sierra Club says the decision is a tremendous victory for Arkansas. "The Court of Appeals stopped an incredibly dirty coal-burning power plant proposed for the Natural State. By doing so, the Court protected our environmental, public, and economic health. Coal is a risky investment in 2009--Arkansas shouldn't gamble her future on it."
UPDATE: Peter Main, a spokesperson for SWEPCO, says they are disappointed in the Court of Appeals decision and are still reviewing the ruling. Main says the ruling appears to deal with process and not whether or not the plant is the best way to serve their customers. When asked if construction would stop he said, "the plant is under construction," and would not comment any further. He also had no comment on plans to appeal the decision.
UPDATE II: Sierra Club and Audubon will hold a press conference today at 1:00 at the Sierra Club headquarters at 1308 W 2nd Street in Little Rock. Hooks says the groups will call on SWEPCO to stop construction of the plant. He also says that continuing construction is financially risky for the utility and possibly harmful to Arkansas rate-payers.
UPDATE III: Attorney General Dustin McDaniel should be on the next plane to Argentina. From Judge Josephine Linker Hart's concurring opinion:
The Office of the Attorney General acquiesced to the CECPN proceeding, thus abdicating its responsibility to protect the interests of the people of this state. The Consumer Utilities Rate Advocacy Division within the Office of the Attorney General, more commonly referred to as CURAD, was created by the General Assembly in 1981 to provide the people of Arkansas with “aggressive and effective representation in utility rate hearings and other utility-related proceedings."Read the full decision here. Gerard Matthews has a summary on the jump, followed by some mush from the governor.
The Court of Appeals found that the Arkansas Public Service Commission (APSC) had erred in three ways: by failing to resolve all matters (location, financing, construction, and operation of electric generating plants and electric and gas transmission lines and associated facilities) in one proceeding; by resolving the basis of need for the facility in a separate proceeding; and by failing to address alternative locations in the manner required by statute.
Splitting the proceedings up into multiple hearings made it difficult for opponents to fight the plant, but it also gave them many different avenues to challenge it. It's not clear to me there was ever a need for this kind of power in Arkansas, but rate-payers in this state would end up footing the bill to send power to Texas and Louisiana, also served by SWEPCO.
Key points from the ruling:
The APSC Erred in Failing to Resolve All Matters in a Single Proceeding
"Our legislature has determined that the responsibility to ensure safe and reliable electricity requires the APSC to resolve all matters concerning the location, financing, construction, and operation of electric generating plants and electric and gas transmission lines and associated facilities in a single proceeding to which access will be open to individuals, groups, state and regional agencies, local governments, and other public bodies to enable them to participate in these decisions. The APSC failed to resolve all matters in a single proceeding. Accordingly, we reverse the grant of the Certificate of Environmental Compatibility and Public Need (CECPN) application to build the Turk Plant and, if SWEPCO chooses to reapply for a CECPN, direct the APSC to conduct a single proceeding in compliance with Arkansas Code Annotated section 23-18-502."
The APSC Erred in Failing to Find the Basis of the Need in the CECPN Proceeding
"Appellants also contend that the APSC erred in failing to make a finding regarding the basis of the need for the Turk Plant in this proceeding as required by the Utility Act. Instead, the APSC stated that it had previously found a need by SWEPCO for additional power supply resources... and did not need to make a finding of the basis of the need in this proceeding. We disagree that... satisfied the APSC’s duty to make a finding of the basis of the need for the Turk Plant."
The APSC Erred in Failing to Require SWEPCO to Address Alternative Locations
"SWEPCO’s application and attached EIS [environmental impact statement] refer only to a study commissioned by SWEPCO’s parent company, AEP. The study, conducted by Sargent & Lundy, an engineering consulting firm, evaluated a total of nine sites as potential baseload facility sites: four were in Arkansas, four were in Louisiana, and one was in Texas. SWEPCO’s application states that the Hempstead site was selected because it was large enough to accommodate the facility, had an adequate water supply, had nearby rail access, and had a property owner willing to sell. The other sites were not mentioned.
Staff witness Clark Cotten admitted that SWEPCO’s EIS did not contain a description of the comparative merits and detriments of each alternative location as required by section 23-18-511(8)(B)(iii). Indeed, SWEPCO’s brief admits as much.
This is particularly disturbing because the Sargent & Lundy study did not find the
Hempstead location to be the most suitable of the sites considered. In fact, SWEPCO witness James Kobyra testified that the Hempstead site ranked number seven out of ten sites in the initial study and did not come up as a preferred or alternative site in the State of Arkansas.
The Sargent & Lundy study was the only site-selection study cited by SWEPCO and it provides little, if any, support for the selection of the Hempstead site. We hold SWEPCO’s application, including the EIS, did not provide sufficient information regarding alternative locations or the comparative merits and detriments of each alternate location to satisfy sections 23-18-511(2) and (8)(b)(iii)."
STATEMENT FROM GOV. MIKE BEEBE
LITTLE ROCK – For months, Governor Beebe has urged all interested parties in this debate to follow the prescribed legal process and allow it to work. Today represents another step in this ongoing process. If the Appeals Court decision stands, and the applicant chooses to restart this process at the Public Service Commission, Governor Beebe encourages the PSC to give the facts of this case a full and thorough hearing and to seek input from every affected party