Coal Goes to Court

Lawsuits are flying to stop dirty power plants

With the nation looking on in shock and awe as Texas' planned coal craze progresses, two high-profile court cases filed by a bevy of community and green groups seek to put a giant judicial plug in the smokestacks of 17 coal plants proposed statewide.

Environmental Defense filed a lawsuit in October challenging the state's rush to permit the plants, and now the Lone Star Sierra Club has joined in, filing a petition recently to intervene. The suit, filed against the Texas Commission on Environmental Quality and the State Office of Administrative Hearings, directly attacks Gov. Rick Perry's October 2005 permitting fast-track executive order and the resulting decision by SOAH in December to consolidate public hearings for six separate TXU plants into one hearing. The fast-track cuts in half the amount of time regulators and citizens have to study the plants' impacts and "imposes an unreasonable schedule to thoroughly develop the required technical and legal issues for one major air permit, let alone six," according to the suit, which also raises due process and separation of powers issues. Twenty-five state representatives formally objected recently to the turbo-permitting of the six plants. Environmental Integrity Project counsel Ilan Levin, who filed the petition, says the suit also addresses how the TCEQ has failed to follow its own rules and those within the federal Clean Air Act thus far; he hopes the case will have precedent-setting implications. "TCEQ's executive director and staff time and again tend to be on the side of [industry] applicants," when the law says they must be unbiased and neutral, said Levin. When SOAH judges recommended that TXU's Oak Grove plant permit be denied, TCEQ Executive Director Glenn Shankle filed nine pages of comments arguing otherwise. Levin added that TCEQ lawyers have also sought to cross-examine individual citizens who have gained official standing to oppose the plants during hearings. The case goes to state district court Jan. 18 and again on Jan. 29.

In a separate suit, Dallas oilman and developer Albert Huddleston, his group CleanCOALition, and Waco-area community group Robertson County Our Land Our Lives went straight to the source of the coal conundrum, suing TXU directly in December. With the help of über-prestigious Dallas law firm Locke Liddell & Sapp, the federal suit targets TXU's Oak Grove coal plant, arguing that its application violates the federal Clean Air Act by failing to employ the best available emissions-control technology. The suit addresses Oak Grove's use of lignite coal, one of dirtiest types known, and TXU's failure to consider the use of coal-gasification technology, capable of emitting up to 90% fewer polluting emissions and capturing climate-changing carbon dioxide. The SOAH recommended denying Oak Grove's permit in an August decision, but many expect TCEQ to ignore the ruling and side with TXU. A TCEQ decision was expected in January but was conspicuously postponed until after the election and again after an unexpected vacancy on the three-member TCEQ. The guv's office didn't respond to a request for a replacement appointee update, and no court date has been set for the lawsuit. Rumors of a third lawsuit, also aimed at Perry's embattled executive order, were fluttering like snowflakes earlier this week.

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