"If you build it, they will come" — the litigants, that is. The lawsuit involving the construction of Southwestern Electric Power Co.’s (SWEPCO) John W. Turk Jr. ultrasupercritical coal-fired power plant in Arkansas gives new meaning to that popular quote from the movie Field of Dreams.
Legal Background
In November 2008, SWEPCO, a subsidiary of American Electric Power, began building a power plant in Hempstead County, about 15 miles northeast of Texarkana. The plant is designed to bring generation and related transmission improvements to southwest Arkansas. The 600-MW coal-fueled plant also is intended to provide baseload power to SWEPCO customers in Arkansas, Louisiana, and Texas. Classified as ultrasupercritical, the Turk plant requires less coal than other technologies per megawatt-hour, leading to lower emissions of CO2 and mercury, higher efficiency, and lower fuel costs per megawatt-hour generated. (See the July 2009 POWER special report on this technology for details.)
Before it began construction, SWEPCO had cleared a number of required regulatory hurdles. However, several local private hunting groups and landowners, including the Hempstead County Hunting Club (HCHC), opposed construction of the plant because of concerns about it releasing air pollutants. On May 9, 2008, the HCHC filed a citizen’s suit against SWEPCO pursuant to the Clean Air Act (CAA), seeking to prevent SWEPCO from building the plant without first obtaining a prevention of significant deterioration permit under the CAA.
On June 24, 2009, the Arkansas Court of Appeals overturned the Arkansas Public Service Commission’s (APSC) decision to grant a certificate of environmental compatibility and public need (CECPN) for construction of the Turk plant. The CECPN is legal authorization granted by Arkansas to a regulated utility to construct a power plant or transmission facilities and is only issued after public and formal review by the state and interested stakeholders. The ruling found in favor of the plant’s opponents.
The appellate ruling is based upon a literal application of the wording of a state statute. The court agreed with private hunting clubs and landowners that a key issue is the wording of Arkansas Code Annotated 23-18-502, commonly known as the Utility Statute.
The court said the APSC violated the "single proceeding" language of the statute by conducting a separate docket for SWEPCO’s application to build the Turk plant and separate dockets for construction of transmission lines, instead of resolving all matters related to the plant in a single proceeding.
Most of the opinion addressed procedural issues; however, the appellate court also dealt with the issue of "the failure of SWEPCO’s application to adequately address alternative locations" for the proposed Turk plant. The opinion stated that SWEPCO failed to adhere to the statutory requirement to detail the comparative pros and cons of each potential location.
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