When is the law perfectly meaningless?
When it stands between a big energy company and what it wants.
Once again, a court has held that American Electric Power, its subsidiaries and partners and the government agencies that serve them trampled on the law to speed the construction of a giant coal-burning power plant downwind of us in southwest Arkansas. Once again, it makes no difference. Construction on the 600-megawatt station continues apace. Work on the plant began before the utilities had even the first regulatory go-ahead and it’s barely slowed as one court after another has ruled that the law had not been followed in the regulatory process. The plant will open next year and begin providing power to its principal beneficiaries in Texas and Louisiana.
This time it was a three-judge panel of the 8th U.S. Court of Appeals, which upheld an injunction issued last year by U.S. District Judge Billy Roy Wilson Jr. Wilson’s order stopped the builders from poisoning fish and wildlife habitat by discharging dredge and fill materials into wetlands and stream channels. But construction continued and it will now.
The court was fairly blistering. The utilities and builders simply ignored warnings by the Corps of Engineers about building on the wetlands and dumping dredge waste and fill material into the wetlands and streams. The law requires that utilities get clearance from the Corps of Engineers before doing that, but American Electric Power didn’t wait for the Corps.
The case now goes back to the district court—Wilson angrily gave up the case last year and a Nebraska federal judge was assigned to it—and the utilities say they are sure he will say destroying the wetlands will be OK.
The state Public Service Commission and the state Pollution Control and Ecology Commission by split votes said the plant was needed and that the environmental damage would be acceptable. The Arkansas Court of Appeals and the Arkansas Supreme Court both ruled unanimously that the PSC had ignored the law in granting approval. The utilities decided then that the plant, which was more than half finished, would be converted to a merchant plant so that it would not need the state’s approval. It will simply market its electricity to the subsidiaries and elsewhere rather than embedding the construction costs in its rate base and earning profits on the investment from customers in Texas, Louisiana and Arkansas.
The plant was never needed. There is an ample amount of cleaner power available from existing power plants—a giant gas-burning merchant plant in Union County could meet the needs for many years. The Arkansas site was ranked about the lowest of a number of sites in three states, but Texas was stopping construction of coal plants because of the unwholesome volume of mercury, sulphur, carbon and nitrogen poisons they emit. Arkansas regulatory agencies were known to be a pushover, so Hempstead County was chosen.
The law is proving to be nettlesome to the big power producer, but it is merely an inconvenience. By the end of 2012, the Turk plant will be sending 6 million tons of carbon dioxide our way. But you can’t see it or smell it, so we shouldn’t be bothered, right? Texans will thank us for our generosity.
