Power Plant foes file appeal

This article ran in this mornings Arkansas Democrat-Gazette.

Power plant’s foes file appeal
Club cites law’s ‘plain language’
BY BILL W. HORNADAY ARKANSAS DEMOCRAT-GAZETTE Opponents of a proposed $1.6 billion coal-fired power plant near Texarkana are appealing a federal judge’s July ruling that some types of construction are allowed before obtaining an air permit required by the Clean Air Act. In a brief filed with the 8th U.S. Circuit Court of Appeals in St. Louis, the Hempstead County Hunting Club argues that U.S. District Judge Harry F. Barnes misinterpreted the “plain language” used by Congress when it amended the act in 1977 to prevent “significant deterioration” of air quality. After three days of hearings in June, Barnes sided with arguments by Southwestern Electric Power Co. that federal policy has since evolved through a series of memos issued by Environmental Protection Agency officials. Such memos — which a former EPA official testified were written to clarify the act’s general language — allow work that is not permanent and does not assemble equipment intended to generate air emissions. Yet the club contends that the “plain language” of a law offers the best evidence of the lawmakers’ intent. “The deference owed to the plain language in congressional enactments is so formidable that not even courts should second-guess Congress,” club attorneys said in a brief that was filed Tuesday but was not pub- licly accessible until Thursday. If Barnes’ ruling is allowed to stand, the club contends, the Clean Air Act will be relegated to a “civil penalties statute” that penalizes violators only after their actions become irreversible. “Such as policy would do little to ‘protect and enhance the quality of the nation’s air resources,’” club attorneys stated. SWEPCO’s reply before the appeals court is due Oct. 2. The Shreveport-based provider of electricity for 112,000 Arkansas customers, as well as 340,000 customers in Louisiana and Texas, maintains it has acted lawfully. “We believe that Judge Barnes was very clear throughout his decision about the correctness of our pre-construction activities,” SWEPCO spokesman Peter Main said. “And we believe that decision will be upheld on appeal.” The construction dispute at the 3,042-acre site 15 miles northeast of Texarkana is one of several actions the club and other plant opponents have taken to halt or delay a project that SWEPCO hopes to complete by 2012. In May, the club asked Barnes for a temporary restraining order on grounds that activities such as grading, clearing, road building, equipment storage, installing office trailers and creating a detention pond are illegal without a “Prevention of Significant Deterioration” permit the act requires. Barnes ruled that such activities are allowed based on EPA memos that outline permissible activities before the permit is issued, what an emissions unit is and what constitutes its construction. Such memos also allow contracts to buy emissions equipment before a permit is obtained. Allowable activities include planning, ordering equipment and materials, site-clearing, grading and on-site storage — all at the owner or operator’s risk, one memo states. Illegal activities include installed building supports and foundations, retaining walls, paving, laying underground pipe and construction of permanent storage facilities. Through “pre-construction” work, SWEPCO says, it is avoiding increased costs for the 600-megawatt John W. Turk Jr. power plant. Officials with SWEPCO’s Ohio-based parent, American Electric Power, said in June that SWEPCO would lose an estimated $18.3 million from a fourmonth delay and at least $33.2 million from a year-long shutdown. Projected plant costs already have risen from $1.3 billion to $1.52 billion — and nearly $1.6 billion when costs for three transmission lines are added. “Granting an injunction in this case would interfere with SWEPCO’s ability to pursue this lawful activity and would ultimately cost SWEPCO both time and money,” Barnes wrote in his July 10 ruling. SWEPCO has said it needs the plant to prevent a shortage of electricity. But recent filings with Texas regulators revealed that fuel prices — whether coal or natural gas is cheaper in the long run — have become a “main issue.” The hunting club is among several landowners with about 18,000 acres near the plant site. That includes 2,000-acre Grassy Lake, which is home to alligators, migratory birds and some of Arkansas’ last cypress swamps and stands of virgin timber. By a 2-1 vote, SWEPCO won approval from the Arkansas Public Service Commission in November to build the plant. Regulators in Louisiana and Texas also approved the plant’s construction. But the Arkansas ruling is under appeal before the state Court of Appeals. SWEPCO also wants Texas regulators to reconsider their decision to cap the plant’s construction and emissions costs. SWEPCO also awaits an air quality permit from the Arkansas Department of Environmental Quality. A second public hearing addressing federal rules not in place during the first hearing in July 2007 is scheduled for 6 p.m. Sept. 18 at the University of Arkansas Community College at Hope.