LITTLE ROCK — Southwestern Electric Power Co. must immediately stop work on a small part of the 3,000-acre site where the company is building a $2.1 billion coal-fired power plant in Hempstead County, U.S. District Judge Bill Wilson ruled Wednesday.
Wilson issued a preliminary injunction, forcing the firm to cease work in an 8-acre area covered by a U.S. Army Corps of Engineers permit, where SWEPCO has been discharging dredge or fill material into wetlands. SWEPCO received permission for the work from the Corps in December.
Next, attorneys on both sides will file motions with Wilson addressing whether there should be a permanent injunction against construction in the 8 acres - or even on the entire project, said Chuck Nestrud, an attorney for the Hempstead County Hunting Club, which sued SWEPCO.
The decision is the third consecutive court ruling against SWEPCO’s construction of the coal plant. A six judge panel of the Arkansas Court of Appeals ruled unanimously last year that the Arkansas Public Service Commission erred in 2007 by approving construction of the plant. The Arkansas Supreme Court unanimously upheld that decision in May.
In June, SWEPCO choseto convert the 600-megawatt John W. Turk Jr. facility to a merchant plant, meaning it would sell the electricity to its customers in Texas and Louisiana, but none to customers in Arkansas. That avoided the need for Arkansas approval for the plant, SWEPCO argued.
Wilson’s order was in two cases filed in U.S. District Court for the Western District of Arkansas in Texarkana. The Hempstead County Hunting Club, the Sierra Club, the National Audubon Society, Audubon Arkansas and several individuals sued SWEPCO and the Corps of Engineers in the two lawsuits. Hearings were held in the cases in September.
Nestrud called the order “the right result.”
“In its effort to prematurely construct this facility, SWEPCO has flaunted the legal system and in the process is destroying a very sensitive environmental ecosystem,” Nestrud said. “We are pleased that an injunction has now been issued, and it is time for SWEPCO to rethink this project.”
That sensitive environmental ecosystem includes Grassy Lake, which is home to many species, some rare.
SWEPCO is “disappointed in the court’s decision” but will abide by the order, Venita McCellon-Allen, SWEPCO president and chief operating officer, said in a prepared statement.
“We will demobilize activities in the affected areas in a safe and orderly manner,” Mc-Cellon-Allen said.
The preliminary injunction affects the installation of a water intake structure in the Little River, a few areas crossed by the water pipeline and the placement of a few poles for one of the transmission lines, McCellon-Allen said.
“The overall construction of the Turk Power Plant is unaffected by Judge Wilson’s ruling,” McCellon-Allen said. “As you’d expect, however, we will continue to exhaust all legal remedies to protect SWEPCO’s investment in the Turk plant and in Southwest Arkansas.”
In a filing with the Public Service Commission in May, SWEPCO said the Turk plant was one-third complete.
David Cruthirds, a Houston regulatory lawyer and publisher of an energy newsletter, said that it would be premature to try to predict whether Wilson’s ruling Wednesday could lead to halting the entire project.
SWEPCO may be able to find another location on the site or near the site to supply water for the plant, he said. Or it may only need to go through the permitting process with the Corps of Engineers again, with stricter adherence to guidelines, Cruthirds said.
But if Wilson eventually were to order a permanent injunction on the entire project and he is upheld on appeal at the 8th U.S. Circuit Court of Appeals in St. Louis, SWEPCO would have to stop workon the plant and write off its losses, Cruthirds said.
Glen Hooks, regional director of the Sierra Club’s Beyond Coal campaign, said, “Since 2002, there have been only 25 [coal-fired] plants that were built or are currently under construction. State after state has rejected dirty coal plants in favor of cleaner energy.”
The Turk plant is the most recent coal plant to break ground in the United States, Hooks said.
The Corps of Engineers determined that the Turk plant would not have a significant impact on the “quality of the human environment” in the area.
The hunting club and the environmental groups argued that the Corps violated several federal laws and regulations in issuing the permit. The Corps also failed to adequately supervise the preparation of an environmental-impact statement for SWEPCO’s property, the environmental groups claimed.
The hunting club also claimed the federal Endangered Species Act was not addressed.
Wilson said in his order that “while an agency decision weighing conflicting scientific evidence is entitled to deference, a showing that the agency entirely failed to consider important environmental factors is evidence of a failure to take the hard look at environmental consequences that the [National Environmental Policy Act] requires. Consequently, I conclude that plaintiffs have shown a likelihood of irreparable harm to the environment if a preliminary injunction is not entered.”
SWEPCO argued that it would cost almost $310 million if the firm had to stop work on the entire project for a year. Because of the large potential loss that SWEPCO faced, its attorneys argued in the hearings that the environmental groups and the hunting club should post a multimillion-dollar bond to cover SWEPCO’s monetary loss if SWEPCO eventually wins the case.
Instead, Wilson ruled Wednesday that the hunting club and the Sierra Club should each post $1,000 bonds.
Front Section, Pages 1 on 10/28/2010