The Sierra Club can make its case in federal court about whether the group should be allowed to obtain records supplied to the U.S. Environmental Protection Agency by Entergy regarding two coal plants operating in the state and one in Louisiana, the 5th U.S. Circuit Court of Appeals ruled this week.
"I don't think we're going to have a lot of trouble getting the documents now," Sierra Club of Arkansas Director Glen Hooks said. "These are public documents."
Hooks said the Sierra Club has used such documents on emissions at power plants across the country to monitor whether Clean Air Act violations are occurring.
Entergy Arkansas spokesman Julie Munsell said the company had received the court decision and was reviewing it.
The records concern the 1,700-megawatt Independence and White Bluff coal plants near Newark and Redfield, respectively, which Entergy is the principal owner of and which operate without major emission-reducing scrubbers. The third plant is a 30-year-old coal plant near Mossville, La.
After the EPA asked for thousands of pages of records from Entergy Arkansas regarding the power plants, the Sierra Club submitted two requests for access to the records -- one in 2011 and another in 2013 -- through the Freedom of Information Act. Because Entergy had designated many of the documents it provided to the EPA as containing confidential business information, the EPA gave the company the opportunity to substantiate the claim before handing over any documents to the Sierra Club.
The EPA determined in 2014 that none of the 21,685 pages requested contained confidential business information, but that about 18,000 of the pages contained third-party contractual information that may be subject to confidentiality through Exemption 4 of the Freedom of Information Act.
The agency then said it would release the more than 3,000 records that would not be exempt from public records law, prompting Entergy to file a reverse-Freedom of Information Act lawsuit against the EPA in the U.S. District Court for the Eastern District of Louisiana to prevent the release of any records.
The Sierra Club filed a motion to intervene in the case, which was denied by the court in 2015, which prompted the Sierra Club to appeal that decision. In a 2-1 decision issued Thursday, the court determined that the Sierra Club could intervene in the case and present its argument for why it should have access to the records.
The court determined the Sierra Club's interests were not adequately represented by the EPA in the case because the EPA had disagreed with the Sierra Club on two issues in the case, including an EPA request to stay the entire case until a final determination is made on whether the documents contain third-party confidential business information.
The case is currently stayed, and the Sierra Club has expressed opposition to the stay in regard to the more than 3,000 documents that the EPA determined did not have third-party contractual information.
Appellate Judge Edith H. Jones said in her dissent that the Sierra Club and the EPA sought the same end result, with that being the disclosure of all of the records.
Metro on 03/19/2016