The Texas Observer

The coal showdown got a slowdown today. After a judge yesterday basically squashed Governor Goodhair’s royal decree, err… executive order, fast-tracking the coal plants, nobody was real sure what would transpire next.

“This case has had more twists and turns than a NASCAR track,” said legendary trial lawyer Stephen Susman last night at an anti-coal meeting in Waco. Susman, who is representing Dallas Mayor Laura Miller’s cities coalition pro bono, suggested that the ruling could set the hearings back two to three years. “TXU will have to go back to the drawing board” if that happens,” Susman said.

Well, it turned out not to be quite that simple. This morning the two SOAH judges decided to put the hearings off for four months - until June 27 - giving both sides more time to sift through the mountains of evidence accumulating around this increasingly-complex case. The ‘time-out’ is certainly helpful for the power plant opponents. It will give them time to push the Legislature to pass energy efficiency legislation and other measures that would reduce Texas’ demand for energy. For every kilowatt that can be saved by weatherstripping homes or requiring more efficient appliances, there’s one less kilowatt that needs to be generated from burning coal. Get rid of the electricity demand and - voila! - TXU’s would-be coal empire ceases to make bidness sense.

Activists also said they would continue to pursue a moratorium on new coal plants through the Legislature despite the court reprieve. Charles “Doc” Anderson (R-Waco), sponsor of a resolution calling for a 180-day moratorium, said his bill is still alive and kicking. (How alive remains to be seen after landing in the graveyard of green bills known as Dennis Bonnen’s House Committee on Environmental Regulation.)

Back at today’s SOAH shindig: After the judges made their postponement decision, the hours stretched on as a dozen or so sleep-deprived lawyers bickered over the relevance of certain issues to the hearings. Things got heated when coal opponents argued that global warming should be part of the discussion.

“The current scientific consensus is that greenhouse gases should be regarded as an air pollutant,” said Susman. Under state law, Susman argued, greenhouse gas carbon dioxide should be regulated as an air contaminant. (Over their lifetime, TXU’s proposed coal plants would produce three billion tons of carbon dioxide, he estimated). Susman accused the Texas Commission on Environmental Quality and its executive director of studiously ignoring the threat to public health and the environment posed by climate change.

Specifically, he said the TCEQ has hardly glanced at climate change since 2000, when the executive director explicitly decided not to study the issue. “Immensely more is known today than seven years ago,” Susman argued. “It is surpassingly strange that the executive director appears to take the position that a decision once made can never be revisited.”

But Susman really went for the jugular when he announced that he intended to “impeach [TXU’s] motives.” Rather than benevolently building coal-fired power plants to supply Texans’ energy needs, “[W]hat they’re really trying to do is mitigate the consequences to them of carbon dioxide regulation,” said Susman. “They have done studies that conclude that it is better to put out lots of CO2 now” so that later, under a cap-and-trade system, TXU will have credits to sell in a carbon market. “That’s the reason for this massive build in the first place.”
TXU’s lead attorney - the formidable John Riley - tried to put the administrative law judges in their place by telling them, “[Global warming policy] is the subject of countries, the subject of Presidents, the subject of Congress, and certainly the subject of the Legislature.” Riley stopped short of acknowledging climate change as a human-driven reality. He said it was something “the scientists still quarrel over,” and pointed to predictions that India and China will build hundreds of coal-fired power plants in coming decades in comparison to TXU’s paltry 11.

As to Susman’s attack on TXU’s motives, Riley said that while he “appreciate[d] the drama” the reality is that TXU is doing what all companies do - “seeing future trends and preparing.”

by Forrest Wilder

This entry was posted on Wednesday, February 21st, 2007 at 9:19 pm and is filed under Energy, Environmental. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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