Supreme Court rebuffs SWEPCO plant challenge | Arkansas Blog

Thursday, May 26, 2011

Supreme Court rebuffs SWEPCO plant challenge

Posted By on Thu, May 26, 2011 at 9:11 AM

The Turk plant under construction in 2009.
  • The Turk plant under construction in 2009.

The hunting club fighting the SWEPCO coal-fired generating plant in Hempstead County lost a major round before the state Supreme Court today.

The Supreme Court said the Hempstead County Hunting Club, which has argued that the plant is unnecessary and environmentally damaging, had not exhausted avenues to appeal the plant's approval before the state Public Service Commission. Until that avenue is exhausted, the court said, it cannot consider arguments that the plant wasn't properly permitted.

Here's the court's decision, written by Judge Karen Baker. Baker authored the Court of Appeals ruling that blocked the building of the Turk Plant because SWEPCO had not obtained a certificate of environmental compatibility and public need. The Supreme Court upheld that ruling.

In the face of that decision, SWEPCO moved to build the plant under an exemption granted "merchant" power plants, which don't recover costs through retail rates in the state but through wholesale power sales. The Supreme Court said the Hempstead Hunting Club had failed to object to that change of status at the PSC. The hunting club argued that courts had concurrent jurisdiction to consider this issue, but the Supreme Court rejected the argument.

Hempstead Hunting Club, the court said, "is not without remedies; it simply must exhaust those remedies before seeking judicial relief."

The court said it would also be up to the PSC first to consider two questions the hunting club raised:

1) Having first applied for a certificate of environmental capability, had SWEPCO effectively waived its ability to go another route and seek an exemption for merchant power plants?

2) Is, even if exempted, SWEPCO still required to seek a certificate of convenience and necessity?

Federal and environmental appeals continue on the $2 billion plant, which is continuing to be built.

I'm seeking reactions.

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