LITTLE ROCK — Southwestern Electric Power Co. can resume work on 8 crucial acres of a 3,000-acre site where it is building a $2.1 billion coal-fired power plant in Hempstead County, the 8th U.S. Circuit Court of Appeals in St. Louis said in a one-sentence order Wednesday.
The appeals court overturned a preliminary injunction issued last month by U.S. District Judge Bill Wilson, until the appeals court can make a final decision in the case.
SWEPCO had been discharging dredge or fill material into the 8 acres of wetlands. Wilson’s injunction also halted installation of a water-intake structure in the Little River, work on a few areas crossed by the water pipeline and placement of a few poles for a transmission line.
SWEPCO received permission for the work from the U.S. Army Corps of Engineers in December.
The Corps issued the permit because it determined that the work would not have a significant impact on the “quality of the human environment” in the area.
About 18,000 acres owned by hunting clubs near the SWEPCO site include Grassy Lake, home to many species of animals, including bald eagles, terns, alligators and mussels.
Even with the preliminary injunction, SWEPCO has continued working on other areas on the 3,000-acre site where the 600-megawatt John W. Turk Jr. plant is being built. The plant is about 45 percent complete and is scheduled to open in late 2012.
“We’re grateful for the work of the 8th Circuit today [and] we believe the court made the right decision,” Venita McCellon-Allen, SWEPCO president and chief operating officer, said in an interview. “We will continue to pursue all of our legal avenues, both in the district court and in the appellate court.”
Chuck Nestrud, an attorney for the Hempstead County Hunting Club, which sued SWEPCO in district court earlier this year, said the order “is only an interim decision.”
“It’s disappointing, but there was no opinion or analysis [by the court of appeals] that tells us what it really means in the long run,” Nestrud said by phone. “So if you put it in context of the proceedings still pending before the 8th Circuit, the district court and the Arkansas Supreme Court, I don’t think it is particularly significant.”
Glen Hooks, regional director of the Sierra Club’s Beyond Coal campaign, said the order was not surprising.
“It is not unusual to get a stay pending appeal,” Hooks said. “Every court that has looked at this has ruled against SWEPCO so far. I’m pretty confident we’re going to end up winning this case in the end.”
The Sierra Club is a plaintiff in a similar lawsuit filed against the Corps of Engineers, a case also tried before Wilson.
The Arkansas Court of Appeals ruled unanimously last year that the Arkansas Public Service Commission erred in approving construction of the plant in 2007. The Arkansas Supreme Court unanimously upheld that decision in May.
But in June, SWEPCO chose to convert the facility to a merchant plant, meaning the company would sell the electricity to its customers in Texas and Louisiana, and none to its 113,000 customers in Arkansas. That avoided the need for Arkansas’ approval for the plant, SWEPCO argued.
SWEPCO was forced to lay off four workers when it demobilized activities in the affected areas after Wilson’s preliminary injunction. Those workers now will be rehired, McCellon-Allen said.
David Cruthirds, a Houston regulatory lawyer and publisher of an energy newsletter, said Wednesday’s order “is just part of the ongoing struggle.”
“[The court of appeals] must feel that there is pretty good harm [against SWEPCO] or they wouldn’t have lifted the stay,” Cruthirds said. “You probably can’t read too much into it, though.”
The court of appeals has requested briefs from each side in the case, which must be filed before mid-February. After that, the court could reach a final decision on the preliminary injunction by May, an attorney in the case said.
Front Section, Pages 1 on 11/25/2010