LITTLE ROCK — A federal judge Tuesday refused to dismiss a lawsuit brought by two environmental groups who say the U.S. Army Corps of Engineers was too quick to approve the discharge of dredged or fill material for the construction of a $2.1 billion coal-fired power plant in Hempstead County.
Southwestern Electric Power Co. was granted a permit in December to install a structure to discharge the material in Hempstead, Little River, and Miller counties in Arkansas and Bowie County in Texas. It asked earlier this month that the lawsuit filed Feb. 11 in Texarkana by the Sierra Club, the Audubon Society and two area residents be dismissed because the plaintiffs don’t have legal standing to pursue it.
The defendant in the lawsuit is the Corps of Engineers, but SWEPCO intervened in the lawsuit in March.
After a telephone conference conducted Tuesday morning from his Little Rock chambers, U.S. District Judge Bill Wilson Jr. decided that, at least at this early stage of the litigation, the plaintiffs “clearly” have standing.
“What happens after discovery might be another thing,” he said, referring to a higher legal hurdle on the issue of standing that takes over as the case progresses past the information-gathering phase.
Wilson, a senior judge in the state’s Eastern District, was appointed to the case after all federal judges in the state’s Western District recused.
The plaintiffs claim that in granting the permit without a thorough study, the Corps violated the National Environmental Policy Act of 1969, the federal Clean Water Act and other federal regulations. The permit authorizes the filling of about 8 acres of wetlands, the lawsuit says, noting that the construction is occurring near the confluence of the Little River and the Red River near Fulton.
Before issuing the permit, the Corps failed to comply with procedures for gathering information, public participation and decision-making, the plaintiffs contend. Their lawsuit states that SWEPCO’s continuing construction of the plant “will cause irreparable harm to the wetlands, the Little River and other environmentally sensitive portions of the project area.”
Eric Murdock, an attorney for SWEPCO, argued that the permit “doesn’t authorize construction of the power plant” and that for the plain-tiffs to have standing to pursue the case, they must show that the discharging activities alone will harm them. He said the discharging wouldn’t affect bird-watching or nature photography.
Richard Mays, a Heber Springs attorney representing the plaintiffs, said the Corps permit authorizes SWEPCO to put a structure in the river that withdraws water, which endangers the river.
The plaintiffs are asking for a preliminary injunction to stop all work on the project until the Corps studies the effects more closely. Wilson asked the parties to confer with each other on June 22 about when he should schedule a hearing on the injunction request. The hearing will likely take three days.
Business, Pages 27 on 06/16/2010