Perry Can't Fast-Track Coal Plants, Judge Rules

Published: Feb. 21, 2007 at 9:42 AM CST|Updated: Feb. 21, 2007 at 12:31 PM CST
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A judge on Tuesday blocked Gov. Rick Perry's executive order fast-tracking the permitting process for proposed coal-fired plants and ordered that state hearing administrators reconsider environmentalists' request for a delay.

A major hearing on the coal plant permitting is scheduled to begin today. But lawyers for several environmental groups argued before state District Judge Stephen Yelenosky that Texas and Oklahoma citizens opposed to the plants were at a disadvantage because there hadn't been enough time to prepare.

They claimed the governor's order was unconstitutional, and the judge agreed that the plaintiffs were likely to prevail in their argument.

Yelenosky's temporary injunction did not cancel the hearing, but he said administrative judges should reconsider the schedule.

"He basically wants to liberate them from the executive order," said plaintiffs' attorney Jim Blackburn. He said the judge declared Perry's order illegal and non-binding.

"No one should be surprised that a single liberal Austin judge would rule against Gov. Perry and his efforts to increase energy capacity in Texas," Perry spokesman Robert Black said in a statement. "We will take a close look at the ruling and make a determination on how we will proceed."

The Texas Attorney General's Office, which represented Perry in the case, referred all comments on the judge's ruling to the governor's office.

All sides in the case expected today's hearing to convene as scheduled and for the request for a delay to be raised at that time.

At issue in the hearing is Dallas-based TXU Corp.'s proposal to build six coal-fired plants in North, East and Central Texas.

"We're obviously disappointed in this decision," TXU spokeswoman Kim Morgan said. "Every day of delay means that meeting the goal of providing newer, cleaner power generation is denied."

TXU contends the coal plants will lower utility costs and help provide needed power supplies for the future.

Plaintiffs' attorneys argued that Perry's fast-track executive order, issued in October 2005, was illegal and unconstitutional. They said the Texas governorship is intentionally weak under the state Constitution and that Perry's order interferes with the legislative branch.

"The governor is doing something that he has no power to do," said attorney David Kahne, representing Citizens Organizing for Resources and Environment, known as CORE, along with other plaintiffs.

The Legislature set up the State Office of Administrative Hearings as an independent forum for contested cases, and the governor doesn't have the authority to direct the way it holds its hearings, Kahne told the judge.

State attorneys said the plaintiffs failed to show how they would be irreparably harmed by the upcoming environmental hearings.

"There is no injury based on this purported accelerated schedule" of hearings, said Shelley Dahlberg, an attorney for the state. She said the citizen groups don't have legal standing to make the argument that they've been harmed at this point, though they might after the hearings, depending on the outcome.

A number of Texas cities and citizen groups oppose the plants.

Dallas Mayor Laura Miller, a critic of TXU's coal plant proposals, told KRLD radio station in Dallas that it will become clear Wednesday what will happen next.

"We'll take this news that we just heard, and consider it, and see where we are in the morning," Miller said from a bus headed to Waco for a Clean Air Coalition meeting Tuesday night.

Texans who live near proposed plants showed up in state district court in Austin on Tuesday representing CORE, Texans Protecting Our Water, Environment and Resources, or TPOWER, and other groups.

"We're actually in the ring of fire," said Robert Cervenka, a rancher in McLennan County who lives amid proposed coal plant sites. Outside the courtroom, he said he and his wife worry that the plants could hurt the air quality of their region for cattle, wildlife and people.

Katrina Baecht, whose family farm is six miles from the site of a proposed plant near the Oklahoma border, said she also was worried about air quality if the plants are built.

As for the Wednesday hearing, she said the Oklahoma Department of Environmental Quality was added to the case just last week and wouldn't have time to prepare for the proceeding.

Blackburn said preparing for the hearings was crucial because they establish the record connected to the permitting of the plants.

"It will basically be an indelible stamp on those six plants from now on, and they're bad for Texas," he said. "If your kids have asthma, if your kids have any type of breathing problems, they'll get worse because of these plants."

Dahlberg, disputing a plaintiffs' legal argument on property rights, told the judge, "There's no property right these people have to clean air."

Story courtesy of the Associated Press.