Tuesday, March 29, 2011

EDITORIAL >> Utilities in charge

If anyone should ever dispute who the real constituency of the Arkansas legislature is, the definitive answer is, see HB 1895 of 2011. When the public interest clashes with that of a powerful commercial interest, the legislature will side with their corporate supporters every time.

The Senate passed HB 1895 Monday night by a vote of 26 to 7 despite protests that it would weaken the already flimsy public control over the siting of big polluting power plants. The House of Representatives had passed the bill handily and now Gov. Beebe will overcome his concerns about the weakened regulatory structure and sign it into law.

American Electric Power, the Ohio-based conglomerate that owns the largest power distribution system in the country, now will try to hammer the Arkansas courts into subservience. The Arkansas Court of Appeals and Arkansas Supreme Court have both ruled, unanimously, that the company and the Arkansas Electric Cooperatives Corp. violated the law in finagling approval from state regulatory agencies to get permits to build a giant coal-burning generation plant in southwest Arkansas. The plant will supply power mostly to Louisiana and Texas, which did not want the plant built there.

See, the utilities will tell the courts, the Arkansas legislature, which represents the people of Arkansas, sided with us. It is not likely to work, but the dismantled regulatory structure will be there next time a utility needs it.

The state Public Service Commission let the utilities start building the plant without a permit and they continued the work without a valid one. When the courts ruled that the PSC’s permit was invalid, American Electric Power said it would make it a merchant plant, removing it from the state’s jurisdiction.

Now they want the legislature to change state law to show that they were right all along and the courts should have ruled for them. Originally, the bill changed the law retroactively to the time the PSC gave American Electric Power the permit, but Gov. Beebe couldn’t stomach that. It would clearly have been unconstitutional, as if that should make any difference. The ex-post-facto feature was removed.

The big problem was that Arkansas law always required the issues involved in a major new generating plant to be decided in a single proceeding where any interested party, including the public, could participate. That included the basic determination of whether a new generating plant was necessary and, if so, whether its degradation of the ground, water and air was an acceptable price to pay for meeting the power needs.

But Gov. Mike Huckabee’s PSC considered American Power’s declaration of the need for the plant in an unpublicized proceeding and pronounced it necessary. Then the company applied for a certificate of public convenience, and the PSC supplied it after hearings. The necessity for the plant was not an issue in those hearings because the previous commission had rubber-stamped it.

HB 1895 declares that the procedure used back then—two separate proceedings, one more or less private between the company and the PSC, and the second a public one—actually is the right way to do it. It describes it as a “clarification” of the law, but it is simply new law.

There was one notable opponent in the Senate, Jeremy Hutchinson, the conservative Republican from Little Rock. Hutchinson said he wanted the power companies to build the big coal plant, but he hated to eliminate the people’s power to object realistically to something so important. (It will belch 6 million tons of carbon gases into the atmosphere every year.) That didn’t seem quite American to him. Nor to us.