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Thank court, again 

It is time to raise a toast to the much-maligned courts, which have once again saved us, if only momentarily, from the folly of that most frequent and dangerous marriage in Arkansas, thriftless industry and pliant government.

This time it was the Arkansas Court of Appeals, which usually labors in obscurity but found the mettle last week to void the state's permit to Southwestern Electric Power Co. and electric co-operatives to build a 600-megawatt coal-burning power plant at McNab in southwest Arkansas.

Swepco won't stop construction on the $1.6 billion plant on the assumption that the Arkansas Supreme Court will be daunted when the inferior court was not, by the magnitude of the situation. It has spent more than $700 million clearing the wilderness and laying the infrastructure of the facility and employing some 400 people from the area. The state allowed the company to build the plant without waiting for a resolution of the twin appeals to the courts and the state Pollution Control and Ecology Commission, and the fait accompli is the company's and the state's strongest hand. You wouldn't dare stop us now, would you?

But unless the Supreme Court stays the Court of Appeals order, the coal plant likely will never go on line, at least without major modifications. Maybe the company could convert it to coal-gasification technology, which would sharply improve its environmental footprint. Turning coal into a gas similar to natural gas is a costlier process than simply burning pulverized coal, but it burns far more efficiently, requiring far less coal for the same BTUs and dramatically reducing greenhouse gases.

If the state Public Service Commission must take up all the issues of the coal-burning plant again, as the Court of Appeals said the law requires, it cannot escape the realities another time.

One of those is the huge penalty that the company and all its customers will face from the production of 5 to 6 million tons of planet-heating greenhouse gases each year. When it handed Swepco the permit two years ago the Public Service Commission could shrug and say that Congress and the George Bush administration had never flatly condemned the carbon poisoning from coal plants and until they did the commission had no choice but to let Swepco build it because it was the most economical way to generate so much electricity. Paul Suskie, the chairman and the only one of the three commissioners from the '07 decision who remains, wrote almost apologetically about approving the plant and urged Congress to act quickly to curb carbon emissions. He seemed to be saying, save us from our folly!

On the day last week that the Court of Appeals handed down its unanimous ruling, the U. S. House of Representatives did just that. It passed by a margin of two votes (one from Arkansas's Rep. Vic Snyder) the first major effort to reduce carbon gases, the major cause of accelerating climate change. The cap-and-trade provisos in the bill will force electric utilities to buy permits for the production of carbon dioxide. The electric utilities and the coal industry won big concessions, but if the bill survives the Senate in the same form Swepco will be paying $13 a ton for its CO2 emissions in 2012 and the penalty will grow progressively steeper in the years after that.

Assuming that Swepco accurately forecast the carbon emissions from the John W. Turk Jr. plant — 5,280,000 tons a year — that is an extra $68.6 million added to the light bills of Swepco and co-op customers in the first year.

If the PSC must review the plant afresh, it will have an adversarial debate about whether the utility needs the extra power to meet its customers' needs. By settling that question in a quiet conversation between the company and the PSC's staff instead of a full adversarial hearing as the law required, it avoided questions about whether conservation might significantly reduce demand and whether power could be acquired on the open market. Arkansas is virtually last among the states in spending on utility conservation. It also ranks near the top — 19th actually — in the amount of carbon dioxide per person that is pumped into the atmosphere (79.5 million tons in 2005, nearly 30 million of that from coal-burning power plants, according to the World Resources Institute).

A commercial generator in Union County that burns natural gas tried to intervene in the 2006 proceeding to show that it could supply all of Swepco's power needs for the immediate future and obviate the need to put another 5 to 6 million tons of heating gases into the heavens each year was shut out of the case. It won't be next time.

The commission, like the company, will still be burdened by the idea that little old Arkansas cannot solve climate change by itself so it need not take a small step. Other states have canceled plans to build coal plants until clean-coal technology is developed, but not Arkansas. If you cannot produce a miracle, why bother with mere good works? David Newbern, the special commissioner who cast the dissent at the PSC in 2007 and a retired justice of the Supreme Court, called this stance “unconscionable.”

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