Thursday, June 20, 2013
A law firm in Rogers representing an intervener in the proceedings before the Arkansas Public Service Commission (APSC) regarding an application by SWEPCO to take private property to build a high-voltage transmission line, has filed a motion to dismiss the application on grounds the docket is “procedurally askew and the problem begins with the statutorily insufficient application herein.”
SWEPCO’s application should be dismissed due to its failure to satisfy the requirement of Arkansas law that a Certificate of Environmental Compatibility and Public Need (CECPN) application must state the need for the facility. The motion was filed by Rogers law firm Wright, Lindsey & Jennings, LLP, on behalf of interveners Julia R. Neighbors Revocable Trust and Trustees.
The motion filed Monday states that SWEPCO has failed to disclose the real “facility” proposed for construction that would require acquisition by eminent domain authority against citizens and landowners of Arkansas.
“What is at issue here is a serious constitutional, due process matter on which sharp corners need to be turned and every jot and tittle satisfied to assure that citizens will not be deprived of their property without just cause, consisting of public benefit and public need,” the filing states. “The applicant’s application fails to show a prima facie case of such cause.”
The filing states that SWEPCO’s application in this docket states the need as, to paraphrase, “Southern Power Pool (SPP) made me do it.”
“SWEPCO then refers to two SPP documents, which are specialized and arcane in their terminology, and that is as far as the applicant goes to ‘state the need’,” the filing said. “That is not far enough. To satisfy the statute, an application for a facility, especially one as enormous as this one with its powerfully destructive potential, must contain some narrative explanation and description of the need for the thing, so the commission can evaluate it and so interveners and staff can fairly test that allegation. A conclusory reference to third-party documents is not a true statement of need that the statute contemplates. It is short shrift.”
The motion makes arguments similar to citizen group Save The Ozarks (STO), which has protested that SWEPCO’s application states they were ordered to build the line by SPP, a Regional Transmission Organization (RTO). But SWEPCO is a member of SPP, so is essentially telling itself that it has to do this.
“They claim they were ordered to do it by SPP, but the documents confirming that need are ones that the public cannot be trusted to see,” said power line opponent Doug Stowe, whose property next to the northern city limits of Eureka Springs is on one of the proposed routes for the power line. “Next, SWEPCO joins with the SPP to make certain the documents are unavailable for public examination. George Orwell could hardly have envisioned such an Orwellian situation. They seem to have no shame.”
Stowe said SWEPCO continues to maintain that the power line is to alleviate problems in Carroll County, but the 345 kV line would deliver four times the power the county has at present, far in excess of the needs of Carroll County now or in the distant future. And their own published maps show the lines traveling on into Missouri as far as Springfield.
Pat Costner, a retired scientist who is one of the founders of STO, has compiled information showing that population growth in Carroll County has been near zero in the past two years, and also has slowed down considerably in the Bentonville area from the time when the pre-Great Recession 2007 SWEPCO study was done indicating need for the new power line.
Costner said the power line is not for the needs of Western Benton County or Carroll County. “This line comes through us and ends in a cow pasture near Berryville,” Costner said.
The Neighbors’ filing states that SWEPCO’s testimony by John Paul Hassink simply states that SPP has instructed SWEPCO to build the power line. “This is still no ‘statement of need’,” the filing said. “This is only repeating the deficient application by reference to a third party’s documents, which require expertise in electrical engineering to appreciate. Both the application and the testimony filed with it fail to satisfy the statutory requirement of a genuine ‘statement of need’.
“Additionally, by referring the question of need to a third party in its application, SWEPCO has prejudiced the ability of interveners to respond to the application by misaligning the parties in this case to its own benefit. This result may very well have been unintended, but, in the age of the RTO, where need is determined outside the utility, SWEPCO should have foreseen the consequences for due process, orderly procedure, and genuine notice in CECPN proceedings.
“Granted that SWEPCO is in the difficult position of plowing new ground here (ironically not for the first time, see Hempstead County Hunting Club v. APSC, 2010 Ark. 221), the law is still the law. An applicant has a statutory obligation to set out the need that justifies the facility, not merely to point to another public utility as the cause of it. SWEPCO’s reference to SPP is not the statement of need required of an applicant by the relevant statute and its application should be dismissed for failure to meet the statutory command.”
The Hempstead ruling refers to the controversial Turk Power Plant in Southern Arkansas, a large coal fired power plant that received a CECPN from the ASPC that was later revoked by the Arkansas Supreme Court. SWEPCO was banned from selling power from the Turk Plant to its retail customers in Arkansas. Opponents have speculated that the real motive behind SWEPCO’s proposed high voltage line is to be able to sell Turk Power Plant electricity out of state, and make money with other long-distance power sales and purchases.
Costner said the SPP relied on the Ozark Transmission Study as the basis for the need for this power line. That document is publicly available and has been submitted as part of the testimony of one of SWEPCO’s experts. “What we do not have are the data, analyses and/or other studies that SPP relied on in preparing the Ozark Transmission Study,” she said. “Those are not publicly available.”
The recent filing by attorneys for the Neighbors’ trust also alleges that SWEPCO’s application fails to describe the true “facility” in question, and thus obscures what is ultimately going on here.
“SWEPCO describes the ‘facility’ as fifty-plus miles of west-to-east extra high voltage transmission line across the western top of Arkansas,” the motion states. “If the SPP documents attached to the application are taken at face value, however, the line proposed here is not really the whole ‘facility’ as the statutes understand that term. What is really on the table is a relatively stupendous loop of transmission lines and poles not only west-to-east, but all the way back west from Osage Creek to South Fayetteville, not to mention connections with Entergy Arkansas –necessary to make the project fully work – that are not within the applicant’s control.
“…This is like asking for approval of half a power plant, with all the costs, impacts, and environmental consequences stated at 50 percent. It is an injudicious approach, and it asks the Commission to be premature in judgment, which invites official unwisdom. The true, real, genuine, ‘facility’ should be the subject of the application, and not the first half that SWEPCO presents. For that reason also, the application should be dismissed, for by omission it is statutorily incomplete.”
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