Columns » Ernest Dumas

Our judicial activists

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Next they will be saying that Arkansas is a hotbed of judicial activists. The Arkansas Supreme Court and the subordinate Arkansas Court of Appeals each ruled unanimously that the state illegally gave one of the country's richest utilities a permit to build and operate a power plant that will belch ?6 million metric tons of global-warming gases a year into the Arkansas sky.

Is that remarkable, or not? Every one of the 13 judges who heard the case found that the state Public Service Commission had not weighed all the economic and environmental consequences as the law required when it gave a subsidiary of American Electric Power, Southwestern Electric, a permit to build the plant.

These were not elitist judges appointed for life. Eleven were elected by the people and the other two were appointed by the governor to supplant justices who were elected from the backyard of the big plant at McNab in South Arkansas and did not want to sit on the case.

Before long they will be saying that Arkansas is no longer the playpen for polluters, although it was the courts and not the regulators of the executive branch who dealt a blow to the Turk generating plant. State regulators — the PSC, the Department of Environmental Quality and the Pollution Control and Ecology Commission — gave American Electric Power everything it wanted, including a cozy and closely guarded hearing back in 2006 on whether the plant was needed at all and permission to build the plant while they were awaiting approval by all the agencies and courts.

So did the state attorney general, whose public-protection office was a virtual ally of the company instead of the tribune for the people and the environment that the legislature intended it to be when it set up the office in 1981.

It has to be noted that the PSC was not unanimous. The dissenting opinion of a special commissioner, former Supreme Court Justice David Newbern, presaged all the points raised by the two courts, including the commission's refusal to seriously address environmental issues as the law required them to do.

What was remarkable about the very similar opinions of the Court of Appeals and the Supreme Court, 11 months apart, was not that they took what seemed to be a stand for the environment against corporate interests and development but the severe scolding they gave the agencies of the executive branch that regulate utilities and polluting industries.

The strongest words were reserved for concurring opinions, by Judge Jo Linker Hart of the Court of Appeals and Justice Robert L. Brown of the Supreme Court. Judge Hart blistered the PSC, the attorney general and other agencies of government that were supposed to look after the health and welfare of people but never raised a peep when they were invited to comment on the coal plant's impact. The attorney general's Consumer Utilities Rate Advocacy Division, which at some points in its history had fought tenaciously for consumers, “abdicated its responsibility to protect the interests of the people of this state,” Judge Hart wrote. She said “it defies understanding” that the PSC would not allow the big gas-powered merchant plant at El Dorado to intervene in the case to show that it could supply cleaner and cheaper power than the Turk plant with a fraction of the harm to the air, land and streams.

For her trouble, Hart got a rare opponent in Tuesday's election, although her inclination to also rule occasionally for injured workers had earned her the enmity of some big employers and the Republican Party as well.

The state could have used some of that judicial verve in the past, such as when the PSC was letting Middle South Utilities build the biggest and dirtiest plant in the state, at White Bluff, without installing scrubbers, the devices that take the sulfur dioxide out of the smokestacks and prevent the acid rain that poisons vegetation and corrupts lungs.

The reason that the Turk plant is being built in Arkansas instead of one of the Texas and Louisiana sites that analysts said were much better is that McNab and the Little River, where it will get 6,000 gallons of boiler water a minute, are in Arkansas, known traditionally for its friendly regulatory regime.

But you should know that the Supreme Court's emphatic ruling probably will not stop the plant. The company can make it a merchant plant, selling its power on the wholesale market, and escape having it regulated by the PSC and reviewed by the Arkansas courts. In a couple of its most improvident acts, in 1999 and 2005, Congress allowed investors to build virtually regulation-free plants to encourage the development of coal generation. Did they ever.

A second Plum Point coal plant at Osceola near the Mississippi River will open before long. It is larger than Turk, and the investors are asking the state Department of Environmental Quality to certify that the smokestacks of still another 665-megawatt unit at the same site will emit an acceptable degree of poison, say 6.5 million tons of CO2. ADEQ will oblige.

The agreeable regulatory climate is why Arkansas outpaces the rest of the nation in increasing its production of global-warming gases. From 1990 to 2005, greenhouse-gas emissions rose 30 percent in Arkansas compared with 16 percent nationally. The Natural State.

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