Coal plant opponents win one battle, lose another

 

May 25 - McClatchy-Tribune Regional News - J.B. Smith Waco Tribune-Herald, Texas

Opponents of coal-fired power plants in Central Texas this week won a state legislative battle but lost a federal court fight.

U.S. District Judge Walter S. Smith Jr., of Waco, on Monday threw out a federal Clean Air Act lawsuit against Oak Grove, a lignite-burning power plant TXU has proposed for Robertson County. Smith said his court had no jurisdiction over the matter because the state has not yet issued the plant's air permit.

But environmental groups were cheering legislation the Texas Senate passed Tuesday that would affect the permitting process for power plants. It would require state regulators to consider the cumulative pollution impact of all existing and pending power plants within 124 miles before issuing an air permit for a new one.

Another amendment to the Senate version of House Bill 3732 would require an analysis showing that new power plants would not bring areas with good air quality -- such as Waco -- into a state of "nonattainment" under federal pollution standards.

The bill was sponsored in the Senate by state Sen. Kip Averitt, R-McGregor, chairman of the Senate Natural Resources Committee. It now must clear a House-Senate conference committee before heading to the governor's desk for a signature.

Tom "Smitty" Smith, executive director of Texas Public Citizen, said the legislation is good news for Texas' air.

"Sen. Averitt gets a pat on the back for this one," he said. "It was his bill, and he was willing to take all the amendments."

Environmental groups and leaders of Waco and other Texas cities last year faulted the Texas Commission for Environmental Quality for failing to predict the cumulative impact of new power plants. Until early this year, eight coal-fired electricity projects were planned in Central Texas. Then TXU scaled back its coal ambitions, abandoning plans to build three units in McLennan County, one in Freestone County and four more around the state.

However, TXU still is moving forward with its request for the Oak Grove project, which would burn lignite, a relatively dirty coal. A contested case hearing on the project ended with a state administrative judge recommending that the Texas Commission on Environmental Quality reject the permit application. The TCEQ board is expected to hear the case June 13.

A local citizens group called Robertson County Our Land Our Lives joined forces with the Dallas-based Clean COALition to sue TXU over the plant last year, anticipating that the plant would quickly win a permit.

The plaintiffs argued that once the permit was granted, reversing it with a federal lawsuit would be difficult.

But Judge Smith wrote that a federal judge cannot rule on a project that hasn't been through the state's permitting process. He also wrote that the defendants failed to prove that they have standing in the case.

Paul Rolke, head of Robertson County Our Land Our Lives, said the dismissal is a disappointment but likely won't be the end of the struggle.

"Assuming the TCEQ actually grants them a permit in a couple of weeks, we could possibly take that to a state district court," he said.

Tom Smith said the judge's decision was bad news.

"I think that's a tragedy," he said. "Once the permit is issued, it's almost impossible to stop the plant."

TXU spokesman Tom Kleckner said the judge's decision will help the company move forward with a plant that is needed to meet Texas' power needs.

"We're pleased that the court has recognized the merits of our arguments, and we will continue to pursue the Oak Grove project to meet the short-term energy needs of Texas," he said.