SWEPCO power plant appeal argued

LITTLE ROCK, ARKANSAS - Oral arguments for one of several appeals filed by foes of the John W. Turk Jr. coal-fired power plant were heard by the Arkansas Court of Appeals.

While numerous disputes have emerged over the $2.1 billion Southwestern Electric Power Co. project 15 miles northeast of Texarkana, the hour-long proceeding generally addressed one key debate:

Did state utility regulators exceed their authority by approving in 2006 SWEPCO's need to secure 1,600 additional megawatts of electricity - five months before it approved the 600-megawatt Turk plant itself?

Members of the Hempstead County Hunting Club and other owners of nearly 18,000 acres near Turk's construction site contend they did.

By pursuing a "needs docket" landowners did not participate in - followed by a plant docket where need was already established - the Arkansas Public Service Commission kept landowners from fully arguing that Turk threatens to spoil one of the state's most sensitive ecological areas and impose runaway costs on SWEPCO ratepayers, landowner attorney Chuck Nestrud said.

"It's fairly obvious you can't balance need versus cost - you cannot take all of these things into account - unless you consider them in a single proceeding," Nestrud told a panel of six judges. "My clients never got the opportunity to adjudicate need."

Nestrud said such an approach was unprecedented in Arkansas, citing three coal-fired power plants built during the 1970s and 1980s.

Commission attorney Lori Burrows rebutted that claim. She said the commission merely followed directives enacted by state lawmakers in 2003 that call for "resource planning dockets" to precede major project proposals such as power plants.

Such dockets have since become routine, she said, adding that to imply otherwise distorts the commission's and SWEPCO's actions.

"The same year SWEPCO did theirs, Entergy did it, too," Burrows said. "That's twice in the same year by two of our four jurisdictional electric utilities."

Burrows added that the landowners want to roll Turk, transmission lines and other related issues into a single docket, but that the commission lacks the jurisdiction.

Nestrud had earlier accused SWEPCO and the commission of trying to cloud an "extremely weak" argument for additional power by splitting the project into six separate dockets.

"The Legislature requires single procedures for power plants, transmission lines and natural gas lines," Burrows said. "All are separate utility facilities. They operate differently, the environmental impacts are different."

Judge Rita W. Gruber asked Burrows what type of notice that landowners near Turk received prior to the resource-planning hearing.

"None," Burrows replied, noting that no such requirement exists by law. "There was public notice required, but no requirement to contact individual landowners."

Burrows added that the commission at that time did not know how or where SWEPCO planned to meet its additional power demands.

"That case was about a need for power - not a power plant," she said.

A few minutes later, Judge Waymond M. Brown asked SWEPCO attorney Stephen Cuffman a similar question.

"You had no idea then that you needed a plant in Arkansas? Because your opponents vigorously argue against that," Brown said.

Cuffman replied that the Turk site won a competitive bid process required by Shreveport-based SWEPCO's primary regulator, the Louisiana Public Service Commission.

In May 2006 - a month before the Arkansas commission approved SWEPCO's need for additional power - SWEPCO officials told the Arkansas Democrat-Gazette that sites in Arkansas were under consideration, but that a short-list had yet to be formed.

In closing statements, landowner attorney Rick Addison referred to the dissenting vote cast by then-Arkansas commissioner David Newbern when the Turk plant was approved in November 2006 by a 2-1 vote.

Newbern is a former member of the Arkansas Court of Appeals and also served on the Arkansas Supreme Court. In his opinion, Newbern noted that the legislative language "can easily be read to require that the issue of the need for additional generating capacity... are to be decided in a single proceeding."

"The issue here is who will follow the law in Arkansas," Addison said.