By Andrew DeMillo of Bloomberg Businessweek
Arkansas’ highest court on Thursday sided with an appeals court that reversed a regulatory panel’s decision to approve a $1.7 billion coal-fired power plant under construction in Hempstead County.
Justices unanimously reversed the decision by the Public Service Commission to grant a permit for the Southwestern Electric Power Co.’s John R. Turk Plant in southwest Arkansas. The ruling sent the case back to the PSC.
The decision, which upheld a similar ruling by the state appeals court last year, found that regulators did not conduct a proper permit hearing.
Justices agreed with opponents of the plant who argued the commission violated state law by considering the need for the plant in a separate proceeding before considering whether to permit it.
“It is clear that, under the Utility Act, there must be a determination of the need for additional power in the proceeding concerning the major utility facility at issue,” Chief Justice Jim Hannah wrote in the ruling. “Determining need for additional power is integral to determining the basis for the need of the proposed facility.”
Peter Main, a spokesman for SWEPCO, said the company was reviewing the decision and declined to comment further.
Public Service Commission Chairman Paul Suskie did not immediately return phone messages Thursday seeking comment.
Lawyers for SWEPCO told the court last month that the Public Service Commission has conducted separate hearings throughout its nearly four decade history. Opponents, however, say that the state law requiring a single hearing on all issues allows for a clear, complete picture of the project.
“We weren’t able to argue whether or not the plant was needed,” Chuck Nestrud, an attorney representing opponents of the plant, said Thursday. “If you don’t need additional power, you don’t need another plant.”
Nestrud said that SWEPCO would have to reapply for the permit to allow the plant to proceed.
Landowners, environmentalists and other groups have been battling the plant on several fronts in an effort to halt its construction. Landowners are also appealing separate air and water permits the plant has been granted.
In a concurring opinion, justices also raised concerns about the impact the coal-fired plant will have on the environment.
“The technology for the Turk plant is untested, the ultimate cost of the plant is considerably higher from original 2005 estimates and an unknown, customer need was determined in a non-public arena, analysis of alternative sites has been given short shrift in the PSC’s order, and the preference given to coal over natural gas seems arbitrary in light of cost and the higher toxic emissions associated with coal,” Justice Robert L. Brown wrote in the concurring opinion.
SWEPCO, a subsidiary of Ohio-based American Electric Power, has 464,000 customers in Arkansas, Louisiana and Texas.
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