By John Lyon
Arkansas News Bureau
LITTLE ROCK — The Arkansas Court of Appeals on Wednesday overturned the Arkansas Public Service Commission’s decision to approve a proposed coal-fired power plant, saying the commission’s review of the proposal was inadequate.
The court ruled in favor of landowners who appealed the commission’s November 2007 decision to grant a certificate of environmental compatibility and public need to Shreveport, La.-based Southwestern Electric Power Company for a $1.6 billion, 600-Megawatt plant in Hempstead County.
If SWEPCO reapplies for a certificate for the John W. Turk Jr. Plant, the commission must conduct a new hearing, the court said.
Rick Addison, attorney for the Hempstead County Hunting Club and other landowners who filed the appeal, said Wednesday he was “delighted” with the opinion, in which the court said the PSC should have considered all matters related to the plant in a single proceeding.
“One of the important aspects of the ruling today is that by requiring all aspects of an applicant’s proceeding to take up every (issue) in one proceeding is that then you have the opportunity to really balance the need for power, the nature of the facility, against its environmental impact,” Addison said.
SWEPCO may ask the state Supreme Court to review the Court of Appeals’ decision, Addison said.
“We recognize it’s not over,” he said.
SWEPCO spokesman Scott McCloud said Wednesday the company was reviewing the ruling and did not immediately know what its next step would be.
“Obviously, we’re certainly disappointed in the Court of Appeals’ ruling,” he said.
McCloud said the court’s decision “appears to deal with the process for approvals and not whether the Turk plant is the best way to serve SWEPCO’s customers.”
John Bethel, executive director of the PSC, said the commission was also still reviewing the ruling.
“We’re trying to identify what the options are and what is the best course for the commission to take at this point,” he said.
Gov. Mike Beebe’s office issued a statement Wednesday that said in part, “If the Appeals Court decision stands, and the applicant chooses to restart this process at the Public Service Commission, Gov. Beebe encourages the PSC to give the facts of this case a full and thorough hearing and to seek input from every affected party.”
The landowners claim the plant would be harmful to the local environment. They argued in their appeal that state law required the commission to consider all matters related to SWEPCO’s application in a single proceeding, but instead the commission considered SWEPCO’s need for additional power generation, the plans for the plant and the plans for transmission lines associated with the plant in three separate proceedings.
The Court of Appeals agreed with the landowners.
“Separating the issues into three distinct proceedings subverted the clear intent of the Legislature for the (PSC) to structure a comprehensive evaluation of proposals in order to determine the economical and environmentally safe provision of utility services to the public,” Judge Karen Baker wrote in the court’s opinion Wednesday.
The court rejected arguments that the PSC has considered issues separately in other applications.
“The mere fact that the practice has gone unchallenged cannot create a presumption that it is proper,” Baker wrote.
The court also found that the PSC failed to require SWEPCO to address the issue of alternative locations for the plant.
The court said an environmental impact study commissioned by SWEPCO’s parent company, Columbus, Ohio-based American Electric Power, evaluated nine sites — four in Arkansas, four in Louisiana and one Texas — and ranked the Hempstead County seventh in suitability.
The study “was the only site-selection study cited by SWEPCO and it provides little, if any, support for the selection of the Hempstead site,” Baker wrote.
In a concurring opinion, Judge Josephine Linker Hart wrote that the commission also failed to consider an existing gas-fired power plant in El Dorado owned by Tampa, Fla.-based Entegra Power Group as a potential supplier of SWEPCO’s need for additional power.
Entegra petitioned to intervene in the Turk Plant proceedings, but the PSC denied the petition.
“It defies understanding that the APSC could not find good cause to allow Entegra to intervene in the Turk Plant proceeding to determine the viability of SWEPCO purchasing power from Entegra and thereby eliminating SWEPCO’s need to build a coal-fired generating facility in Hempstead County,” Hart wrote.
Preliminary construction at the Turk Plant site near Fulton began months ago. Regulators in Louisiana and Texas, where many of SWEPCO’s customers live, have approved the plant.
An appeal of the Arkansas Department of Environmental Quality’s decision to grant an air quality permit to the plant is pending before the state Pollution Control and Ecology Commission.
