by kathy williams
Time. It’s the focal point in the discussion among the groups opposed to building 18 coal-fired power plants in Texas and those advocating such construction.
Opponents say the governor’s executive order putting the plants on a fast-track to gaining a permit doesn’t give them sufficient time to conduct testing and raise money to mount a defense. These opponents also say the plants, including one in Savoy in Fannin County, will pollute the atmosphere for up to 50 years. And the plants can’t be built in time to solve the energy crunch predicted as early as next year. Opponents have sued Gov. Rick Perry, contending his executive order exceeded his constitutional authority and impinged on the authority of the judiciary.
TXU, which is seeking permits to build 11 pulverized coal plants, non profits TXU and other coal and power companies have created, along with the president of Texas Association of Business, say the time to act is now or face the prospect of power shortages in 2008-2009. However, the soonest TXU’s plants would be online is 2010.
Environmental Defense is one of the organizations the Texas State Office of Administrative Hearings admitted as a party to the case considering TXU’s request for a permit to operate the plant. Colin Rowan, director of regional communications for Environmental Defense said Texans do need to act, but his organization has a plan to avert power shortages without further damaging the environment.
Bill Hammond, president of Texas Association of Business, held a press conference in Sherman Friday to advocate the use of coal as a fuel source for producing electricity. Hammond called TXU’s planned plants “new generation” and if built they would ensure Texas meets its energy needs, including recommended 12.5-percent reserves, in the upcoming years. Hammond was on a statewide press conference tour touting TAB’s “Don’t Leave Texas in the Dark: Fuel Diversity is Key to Texas Future Energy Demands.” The report calls for a greater use of coal and nuclear energy to fuel Texas electrical generators.
“Texas is facing a looming energy crisis — and we should and must deal with it today,” states written material Hammond gave to the two reporters who attended the press conference. “To maintain our status as the best place to live, work and raise a family, we must attain additional sources of reliable and affordable energy — and quickly. To ignore this problem, risks undermining Texas job creation, crippling our economy and enduring more of the blackouts our state already has struggled with. None of these is an acceptable scenario.”
The Electric Reliability Council of Texas is responsible for running the state’s electricity grid. In its forecasts of growth in population and use of electricity, ERCOT recommends a reserve margin of 12.5 percent of peak demand. This year, Texas has reached new peaks in both summer and winter demand, the latter unofficially set Tuesday, according to a press release from Thomas Kleckner, corporate communications director for TXU. Even with these records, ERCOT predicts the margin can be maintained until 2008-2009.
Hammond said the rolling brownout Central Texas experienced in April “admittedly was an extremely rare set of circumstances. But it’s the canary in a coal mine. Year-to year demand in August of ’05 to August of ’06 grew by 5 percent. And then we expect some 6 million additional Texan by 2015.”
Environmental Defense’s Rowan said, that’s just the point.
“There’s this 2008-2009 issue that TXU doesn’t address,” Rowan said. “So what we did in our report was we asked energy experts to look at energy efficiency programs across the country. Now what we mean by energy efficiency is not just telling people to put a blanket on and turn down their heaters; we mean systemic changes that would be made to the electrical system that would improve the transfer of electricity and make our system more efficient.”
Rowan said Environmental Defense’s plan also would ask the Legislature to mandate more efficient appliances and changes in the way industry uses the electricity grid. These and other changes proposed in ED’s plan are feasible and “would keep Texas above the 12.5 margin for two years and beyond that we could find about 700 megawatts of additional energy from clean resources to keep us above the 12.5 percent reserve margin for another two years.”
Rowan emphasized that the “major message for that entire analysis is that we have time to figure this out. We do not have to rush and build 11 or 19 coal-fired power plants that will last for another 50 years. We don’t have to decide that right now, we can implement these energy efficiency measure that will save consumers money, use less energy to reduce our pollution, give us time to make wiser, more educated decisions about our energy future.”
On another front, Houston attorney Jim Blackburn filed a lawsuit against the governor saying Perry’s executive order to fast-track the permitting process for TXU’s and eight other coal-fired power plants violates the law and the constitution. Blackburn represents Citizens Organizing for Resources and Environment, the local group that opposes TXU’s plans to build a coal-fired plant in Savoy. Blackburn said in a telephone interview Friday that he represents CORE in both the contested hearing before the State Office of Administrative Hearings and in the lawsuit against Perry.
CORE is joined by three other groups in the lawsuit against Perry, which Blackburn filed in a Travis County state district court.
“The suit charges that the Texas Legislature created SOAH as an independent judicial agency within state government and that the governor lacks the authority to direct the manner in which SOAH conducts its hearings,” a press release from the four organizations states. “The suit also charges that the Texas Constitution prevents such interference with judicial functions.”
Blackburn explained that the statute governing SOAH “creates an independent judicial branch within the executive branch, which is weird, but the statutes itself basically guarantees the independence of this agency. And what the governor has done is he has issued an executive order and the judges have interpreted the executive order to take away their discretion to grant additional time to prepare for a complex hearing.”
Blackburn said typically in complex cases, judges allow additional time for discovery (getting information from opposing sides.)
“Typically, there’s time to hire computer modelers, for example, to monitor the air pollution that will impact the health of the people surrounding the plant and bring in health experts to talk about the health impacts of those numbers.
“You’re dealing with citizens groups that are not generally equipped to do this type of work — having to both raise money, go and hire not only attorneys, but experts and commissioning these studies.
“What the governor’s order does is take away basic due process rights that we otherwise have under state law.”
Blackburn said this is not only a due process argument but a big property rights case in addition to a challenge of the governor’s extension of power.
“These are farmers and ranchers, who for the most part live in the country, that are trying to defend their property and their health and they’re not being allowed a fair chance to do that. And if nothing else, we are going to strike a blow to try to tell the governor we don’t think it’s right.”
Across the Red River, the Oklahoma Department of Environmental Quality has written to SOAH saying it is concerned “that the proper notices of the draft permits were not provided to the agency (DEQ). Under (Texas law) applicants for the proposed electric generation units should have provided notice to any air pollution control agency of any nearby state in which air quality may be adversely affected by the emissions from the new or modified facility. DEQ has not receive such notice. Because proper notice was not made, DEQ requests that these comments be fully considered as timely by the Texas Commission on Environmental Quality and the State Office of Administrative Hearings.”
The Oklahoma environmental protection agency said it is concerned particularly about concentrations of ozone coming north from Texas. The letter says Oklahoma fears such pollution might put that state in a non-attainment status in regard to federal Clean Air Act provisions. DEQ asks that SOAH require studies to show that the cumulative effects of all the plants that affect Oklahoma be conducted before TXU’s permits are granted.
The two judges currently hearing the Savoy case and five others, which it combined into one large case in December, wrote back to DEQ that Texas’ rules require that a company seeking a permit must furnish a copy and affidavit of its newspaper notices to “the air pollution control agency of any nearby state in which air quality may be adversely affected by the new or modified facility.”
The letter continues, “While the rule places the onus on the applicant to provide this information, in the case of Valley Steam (Savoy plant) application, the modeling provided by the applicant and found acceptable by the ED (TCEQ’s executive director) staff demonstrated that levels of modeled criteria pollutants at the state line, with one exception, were at or below (legallty acceptable levels). ... Therefore the ED did not consider Oklahoma to be adversely affected.”
So far, the Oklahoma agency has not further responded. Blackburn said he is hopeful of raising this issue during the contested hearing.