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In coal-plant case, judge withdraws

He cites one-sentence court order by David Smith | December 9, 2010 at 5:54 a.m.

— Quoting the late Arkansas Supreme Court Justice George Rose Smith and country singer Ernest Tubb, U.S. District Judge Bill Wilson surprisingly recused himself Tuesday from a trial over Southwestern Electric Power Co.’s construction of a $2.1 billion coal-fired power plant in Hempstead County.

Wilson, a judge in the Eastern District of Arkansas, accepted the cases on May 25 after every judge in the Western District, where two suits had been filed, declined to try them because of conflicts of interest.

Wilson ruled on Oct. 27 that SWEPCO must stop work in an 8-acre area of the 3,000-acre site. The Corps of Engineers had issued a permit allowing SWEPCO to discharge fill material into wetlands, including the 8 acres where the utility is installing a water-intake structure inthe Little River.

But in a one-sentence order, the 8th U.S. Circuit of Appeals in St. Louis on Nov.24 overruled Wilson and granted SWEPCO a stay of the preliminary injunction.

“I realize full well that my order was not a slam dunk, but I was surprised to see the preliminary injunction eliminated by a one-sentence order,” Wilson wrote.

One of the suits was filed by the Sierra Club and other environmentalists against the Corps and the other was filed by the Hempstead County Hunting Club against SWEPCO.

The hunting club filed a 387-page motion with the 8th Circuit Tuesday, before Wilson recused himself later that day, asking the appeals court to reconsider its stay of Wilson’s preliminary injunction.

Among other arguments, the hunting club said Tuesday that if the appeals court’s stay is not reversed or if no decision is made for months, SWEPCO’s construction on the 8-acre site may be completed before “a final determination can be made that the construction [may be] indeed illegal.”

Wilson mentioned that possibility in his decision to recuse.

“The projects that were stopped by the now-dissolved preliminary injunction will apparently be completed well before the 8th Circuit considers the case on its merits,” Wilson wrote. “In other words, the harm I foresee will have been done, irrevocably.”

That is the reason that the Sierra Club has pushed forthe legal process to move as quickly as possible, said Lev Guter, an associate field organizer for the Sierra Club.

“Every day that passes when SWEPCO is constructing, they are one step closer to putting the public health of Arkansas at danger,” Guter said.

SWEPCO was already 95 percent complete on the work at the 8-acre site before environmentalists and the hunting club filed their lawsuits early this year, said Peter Main, a SWEPCO spokesman.

“We’re proceeding with work in the area that had been affected by the injunction,” Main said. “Completion date for that remaining work can be affected by weather, among other things, so we can’t give a specific date [for completion].”

The power plant is about two-thirds complete.

The schedule to file briefs before the 8th Circuit extends to Feb. 7 and any decision by the appeals court would come some time after that.

Wilson’s recusal is favorable to SWEPCO, said David Cruthirds, a Houston regulatory lawyer and publisher of an energy newsletter.

“The next judge [to replace Wilson] will certainly take note of the court of appeals’ reversal [of Wilson],” Cruthirds said. “[The next judge] may think he sees the handwriting on the wall.”

A decision by a judge to recuse in the middle of a case is very unusual, according to one legal expert, who asked not to be identified.

“Most judges get recused because they are being disqualified or [attorneys] may want to get them out for a conflict of interest or some other reason,” the expert said. “This doesn’t involve anything like that. This is a discretionary recusal.”

Now that Wilson has recused himself, there is no changing the decision, the expert said.

Howard Brill, a professor of legal ethics and professional responsibility at the University of Arkansas School of Law at Fayetteville, said a judge can recuse for any reason and at any time he chooses.

“Typically, judges do not give reasons when they recuse,” Brill said. “It is interesting that Judge Wilson wrote an opinion, appearing to say that he is a bit disappointed that the 8th Circuit did not write a formal opinion addressing his conclusions.

“[Wilson] seems to be saying that how can he preside over a case when he’s not sure what went wrong [with his decision for a preliminary injunction]. He may just feel that at this point it would bebetter and more fair for the litigants to have a new judge preside over the matter.”

In his recusal opinion, Wilson referred to a paper written by Smith - A Primer of Opinion Writing, for Four New Judges - to emphasize that a simple one-sentence order does not give direction to parties in the case.

Smith, who died in 1992 and was a justice on the Arkansas Supreme Court for 32 years, wrote that opinions should be written “above all else to expose the court’s decision to public scrutiny, to nail it up on the wall for all to see. In no other way can it be known whether the law needs revision, whether the court is doing its job.”

Wilson wrote, “Having been given no guidance by the 8th Circuit as to where I went wrong, I believe my time would be better spent working on other cases thatneed attention.”

Wilson closed his three page order with a quote from a Tubb song:

“Let’s just say goodbye like we said hello - in a friendly kind of way.”

Two attorneys representing the hunting club said they were surprised by Wilson exiting the case.

“I would say, like all of the counsel in the case, that I have the utmost respect for Judge Wilson,” said Rick Addison of Dallas. “We will miss him in this matter.”

Chuck Nestrud of Little Rock called Wilson a “great jurist.”

“I hate to see him no longer participating in the case,” Nestrud said.

Front Section, Pages 1 on 12/09/2010

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