The Arkansas Court of Appeals labors in obscurity, reviewing how the trial courts perform in the daily grime of criminal justice and how well the agencies of government follow the law. From time to time that work makes the court an indispensable tribune for the people. The court met that duty Wednesday when it voided the state government’s permit for utilities to build a huge coal-burning power plant at McNab in the wilderness of southwest Arkansas.
The six judges said the state Public Service Commission had flagrantly ignored the law in 2007 when it gave Southwestern Electric Power Co. (Swepco) a Certificate of Environmental Compatibility and Public Need to build a 600-megawatt generating plant to serve customers in Texas, Louisiana and Arkansas. It will share the power with electric cooperatives. The name of the permit suggests that the state government found that the plant was badly needed and that it would be perfectly compatible with the habitat and with people’s health. But the judges, all of them, found that the commission had followed procedures that assured none of that.
Actually, the evidence mustered at the commission’s hearings suggested that none of it was true. There were ample sources of electricity for many years to come without building an expensive poison-spewing plant, and the toxic residue from burning coal would harm the immediate environment and the world’s. The plant would spew 5 to 6 million tons of carbon dioxide into the atmosphere every year, and one little molecule of the stuff hangs around the heavens for 50 to 200 years to heat the planet. Is it hot enough for you already?
But the Public Service Commission — two of the three commissioners, at least — said in 2007 that no agency of government in Little Rock or Washington had ever said how much carbon dioxide was tolerable so it was going to ignore the carbon peril. All the other poisons from the plant would be within acceptable bounds, the commissioners said. At its main hearing the commissioners refused to consider other options to a new generating plant and refused to allow a commercial generator in Union County to intervene to show that it could supply the power. It operates with cleaner natural gas and could supply the 600 megawatts of power the utilities said they would need a few years from now.
In a narrow sense, the Court of Appeals struck down the permit on a technicality. That is how the utility will spin it. The judges observed that Arkansas law requires all the issues — the need for more electricity, the options for meeting it, all the environmental effects, and the location and impact of the transmission lines — to be addressed in a single case.
But the commission broke it up into three separate cases. In the first, which dealt with the question of whether a big new plant was needed to meet future power demands, there was little public notice and no one participated except the utilities and the commission’s staff, which pretty much went along with what Swepco wanted. That has been the attitude of all of the government: the attorney general, the governor, the state Department of Environmental Quality and the state Pollution Control and Ecology Commission.
The judges were sharply critical of the laissez-faire approach of government entities that were charged by law to look out for the consumers and for everyone whose lives would be touched in some way by the plant. Judge Josephine Hart was particularly caustic about the attorney general, who by law is supposed to fight for the interests of the public. She said the office had simply gone along, “thus abdicating its responsibility to protect the interests of the people of this state.”
Unless the Arkansas Supreme Court overturns the Court of Appeals, which we think is unlikely, they will all get a fresh chance to do right when the commission conducts new hearings.
