Hempstead County Hunting Club, Inc. v. Arkansas Public Service Commission

324 S.W.3d 697, 2009 Ark. App. 511, 2009 Ark. App. LEXIS 555
CourtCourt of Appeals of Arkansas
DecidedJune 24, 2009
DocketCA 08-128
StatusPublished
Cited by7 cases

This text of 324 S.W.3d 697 (Hempstead County Hunting Club, Inc. v. Arkansas Public Service Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hempstead County Hunting Club, Inc. v. Arkansas Public Service Commission, 324 S.W.3d 697, 2009 Ark. App. 511, 2009 Ark. App. LEXIS 555 (Ark. Ct. App. 2009).

Opinions

KAREN R. BAKER, Judge.

| Appellants Hempstead County Hunting Club, Inc. (Hempstead Hunting), Schultz Family Management Company (Schultz Family), Po-Boy Land Company, Inc. (Po-Boy Land), and Yellow Creek Corporation (Yellow Creek) challenge the Arkansas Public Service Commission’s (APSC) grant of a Certificate of Environmental Compatibility and Public Need (CECPN) to Southwestern Electric Power Company (SWEPCO), pursuant to the Utility Facility Environmental and Economic Protection Act, for the construction and operation of a coal-fired generating plant in Hempstead County, Arkansas (the Turk Plant). Appellants assert two points of error:

(1) The APSC erred by failing to comply with the requirements of the CECPN ^statute; and (2) The APSC erred by failing to resolve conflicts in the testimony, that its decision was arbitrary, and is not supported by substantial evidence.

The first point of error is divided into three subparts: 1) that the APSC erred by failing to resolve all matters in a single proceeding as required by Arkansas Code Annotated section 23-18-502; 2) that the APSC erred by resolving the basis of the need for the facility in a separate non-CECPN statute proceeding; and 3) that the APSC erred by failing to address alternatives in the manner required by the CECPN statute.

We agree with appellants’ first point of error and reverse APSC’s grant of the CECPN application to build the Turk Plant.

Factual Background

The events leading to this appeal began when SWEPCO, a wholly-owned subsidiary of American Electric Power Company, Inc. (AEP),1 filed an application with the APSC to allow SWEPCO to acquire new power supply resources. Its application described its need for short-term and long-term capacity. The long-term resources consisted of three components: up to 500 megawatts (MW) of peaking in 2008; up to 500 MW of intermediate generation beginning in 2010; and up to 600 MW of base-load resources by 2011. SWEPCO sought a finding of need from the APSC. This application was filed on January 26, 2006, and the APSC established Docket No. 06-024 (the Needs Docket) to address SWEP-CO’s request. This docket was a separate proceeding from the docket in this | .^appeal, No. 06-154-U, and the only parties that participated in the Needs Docket were SWEPCO and the General Staff of the APSC (Staff).

At the conclusion of the docket, the APSC, on June 9, 2006, issued Order No. 3 in which it found that SWEPCO had demonstrated a need for additional power resources but also held that nothing in Order No. 3 represented an APSC finding regarding any specific proposals SWEPCO may have proffer to address its need for additional power resources. Soon thereafter, SWEPCO filed three separate applications pursuant to the Utility Facility Environmental and Economic Protection Act, Arkansas Code Annotated sections 23-18-501 to -530 (Repl.2002 and Supp.2007),2 (hereinafter referred to as the Utility Act), to obtain CECPNs from the APSC to satisfy its long-term needs:

1. Docket No. 06-100-U, filed with the APSC on July 20, 2006, concerned SWEPCO’s request to build a natural gas-fired peaking facility, which will generate 332 MW of summer peaking3 capacity, in Washington County, Arkansas (the Tontitown Plant).
2. Docket No. 06-120-U, filed with the APSC on September 1, 2006, was a request to build a natural gas-fired combined-cycle intermediate4 generating facility of 500 MW in Shreveport, Louisiana, which would be located at SWEPCO’s existing Arsenal Hill Power Plant site.
3.Docket No. 06-154-U, filed December 8, 2006, is the docket involved in this Lappeal. Here, SWEPCO requested a CECPN5 to build a coal-fired baseload6 facility, designed to generate 600 MW of net generating capacity in Hempstead County, Arkansas (also referred to as the Turk Plant). This proposed base-load facility would consist of a single pulverized coal, ultra-supercritical steam generator to be fueled by bituminous coal from the southern Powder River Basin in Wyoming.

Following SWEPCO’s application filed in this docket, a letter from Staff was also filed that notified certain state offices and agencies of SWEPCO’s application,7 where it was available for inspection, and invited comments as to the adequacy of SWEP-CO’s statements.

Only the Attorney General’s Office notified the APSC that it would participate as a party to this docket. Appellants were not included in this mailing; however, between December 28 and January 4, separate appellants filed motions to intervene. SWEPCO [¿objected to their intervention, but in Order No. 2, the APSC granted appellants’ intervention request “on the condition that these entities intervene and participate in this proceeding as a single and united interest represented by common legal counsel.” Thereafter, appellants participated in the application process, including filing testimony, cross-examining adverse witnesses, and filing various motions and briefs with the APSC. A total of twenty-seven witnesses filed testimony and exhibits and/or presented testimony at the evidentiary hearing before the APSC. At the conclusion of the hearing, the APSC and parties visited an existing SWEPCO coal-fired baseload generating plant in Northwest Arkansas (the Flint Creek Plant), the proposed site of the Turk Plant in Hempstead County, and appellants’ private properties around the Turk Plant site. The parties then filed proposed findings of facts and conclusions of law as well as briefs in support of their positions. On November 21, 2007, the APSC entered Order No. 11.

Order No. 11 granted SWEPCO the CECPN it needed to move forward with its plan to build the Turk Plant subject to twelve conditions. Although APSC Chairman Paul Suskie joined in Order No. 11 with Commissioner Daryl Bassett, he also filed a separate Concurring Opinion in which Commissioner Bassett joined expressing grave concerns over the continued use of coal-generated electricity. Special Commissioner David Newbern filed a Dissenting Opinion. On December 11, appellants filed their application for rehearing of Order No. 11, pursuant to Arkansas Code Annotated sections 23-2-422 and 23-18-524(a) (Repl.2002). SWEPCO filed a motion requesting clarification of some of the conditions the APSC had set in Order No. 11 on December 12.

| (¡Order No. 13, filed December 31, 2007, amended several conditions of Order No. 11, as requested by SWEPCO and appellants, but otherwise denied appellants’ rehearing petition with Special Commissioner Newbern dissenting. Appellants then filed their notices of appeal.8

Standard of Review

Our standard of review for appeals from the APSC is limited by the provisions of Arkansas Code Annotated section 23-2-423(c) (Repl.2002); we are to determine whether the APSC’s findings of fact are supported by substantial evidence, whether the APSC has regularly pursued its authority, and whether the order under review violated any right of the appellant under the laws or the constitutions of the State of Arkansas or the United States. Bryant v. Arkansas Pub. Serv. Comm’n, 46 Ark.App.

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Hempstead County Hunting Club, Inc. v. Arkansas Public Service Commission
324 S.W.3d 697 (Court of Appeals of Arkansas, 2009)

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Bluebook (online)
324 S.W.3d 697, 2009 Ark. App. 511, 2009 Ark. App. LEXIS 555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hempstead-county-hunting-club-inc-v-arkansas-public-service-commission-arkctapp-2009.