Waltzer & Wiygul Law Firm

By JACK ELLIOTT JR.

JACKSON, Miss.

The Sierra Club of Mississippi is arguing in court that Mississippi Power Co. should assume the risk of building a new coal power plant, rather than customers, while an appeal trying to stop the project goes through the courts.

“If Mississippi Power thinks it is such a good idea to build this boondoggle, the company should take the risk and build the plant on its own nickel,” Sierra Club attorney Robert Wiygul said. “Instead, Mississippi Power wants the ratepayers to take all the risk.”

Mississippi Power is a unit of Atlanta-based Southern Co.

The Mississippi Public Service Commission voted Tuesday to give new approval for the coal-fired power plant in Kemper County, pushing aside opponents’ calls for a fresh look at the plant’s finances.

The commission voted 2-1 to approve the $2.4 billion plant. Southern District Commissioner Leonard Bentz and Central District Commissioner Lynn Posey, both Republicans, voted for the plant. Northern District Commissioner Brandon Presley, a Democrat, voted against it.

While Presley wrote in a three-page dissent that taking new testimony and evidence would be “an appropriate response” to the court decision, the two other commissioners disagreed. They wrote that the commission had collected volumes of testimony and evidence before initially ruling in favor of the plan.

The power plant would burn lignite mined nearby, convert it to a gas to be burned to generate power and capture carbon dioxide to be pumped underground.

The PSC had to vote for the plant again after the state Supreme Court ruled last month that regulators didn’t fully explain why they raised a cost cap from $2.4 billion to $2.88 billion. The Sierra Club, which opposes the plant, brought the lawsuit that led to that decision.

Commissioners said Tuesday’s ruling does not raise the $2.88 billion cost cap, which is meant to provide a 20 percent margin for overruns.

Mississippi Power spokeswoman Cindy W. Duvall said Thursday that the continued legal action by the Sierra Club was expected.

“We expect this type of activity from the Sierra Club right up until the Kemper Project comes online,” Duvall said. “This is what they are paid to do. No matter that this is the best option for our customers or how environmentally responsible the project is, they will continue to mislead our customers with erroneous information.”

Louie Miller, director of the Sierra Club in Mississippi, said Thursday that the commission’s decision to approve the plant amounted “to little more than putting some lipstick on the pig.”

Miller said the opponents have a judge to stay the commission’s action but “whether that keeps Mississippi Power from building depends on how the judge rules.”

Miller said opponents still want a halt to construction at the site, Mississippi Power has already spent $1.1 billion and committed another $400 million.

The environmental group opposes the plant largely because it opposes mining and burning coal, saying it produces more carbon dioxide than natural gas. Carbon dioxide contributes to global warming, scientists say.

By Wes Helbling

Bastrop Daily Enterprise

Posted Mar 09, 2012 @ 11:00 AM

BASTROP —

Documents on file with the Union Parish Clerk of Court indicate the fate of the USA Speedway will be decided by a jury in October.

The court date is slated for more than two years after residents initially filed a petition for permanent injunction and damages against the race track in the Third Judicial District Court in August 2010. Forty-two additional residents of the area around the track joined the petition within two months of the original filing by 18 plaintiffs.

The USA Speedway is a dirt race track constructed in 2009 in a West Sterlington neighborhood on the opposite side of the Ouachita River from the Town of Sterlington.

The petition argues, in part, that the noise and dust from the Speedway pose “an unreasonable intrusion into the use and enjoyment of Plaintiffs’ homes,” have “created or aggravated respiratory problems in Plaintiffs” and have “reduced Plaintiff’s property values.”

Court records include filings by Plaintiffs’ attorney Clay Garside of New Orleans, and attorneys Jim Norris of West Monroe and Thomas Hightower Jr. of Lafayette, representatives for Speedway owner Bobby Hobson, regarding the Defendant’s allegations that some of the plaintiffs in the suit were unaware of their inclusion.

Entered as Plaintiff’s exhibits are signed and notarized statements from the plaintiffs in question asserting they were, in fact, aware of their inclusion of the suit, and four statements documenting instances in which plaintiffs were allegedly pressured to sign statements reading, “The persons listed below were listed in a suite [sic] against USA Speedway, Bobby Hobson and Casey Hobson. They were listed without their knowledge and wish to have their names removed from the suite [sic].”

Hightower later withdrew an exception of improper joinder of parties that alleged the plaintiffs did not know they were part of the suit.

Records show in August 2011, Garside filed a motion to compel responses to discovery requests for information from USA Speedway LLC, including correspondence between Hobson and the Louisiana Department of Environmental Quality, U.S. Army Corps of Engineers and EPA.

In December, Hightower filed an answer to the original petition in which each of the allegations made against the Speedway is denied without elaboration.

In a memorandum filed Jan. 25, Garside argues against the Speedway’s refusal to answer certain items in the discovery request on the grounds these items “do not relate to noise or dust.” He writes, “[T]he central theory of

Defendant’s case is that opening a racetrack in Plaintiffs’ neighborhood does not violate any laws and Defendant can do what it likes with its property.”

In 2010, following an investigation by the U.S. Army Corps of Engineers Vicksburg District, an EPA spokesman confirmed the agency had determined USA Speedway LLC had violated Section 404 of the Clean Water Act by discharging fill material into a wetlands area without obtaining the required permit from the Corps to do so.

Garside writes, “In addition to being unlawful, Section 404 violations do relate to noise and dust disturbing surrounding neighbors. When the Corps considers whether to allow a property owner to fill in wetlands, it determines whether the project will be in the public interest. … The Corps specifically considers the potential impacts of the project to air quality and noise levels on surrounding property owners … and might well prevent the project from going forward if there are significant adverse effects on these aesthetic values in the area.”

Instead of applying for a Section 404 permit, Garside writes, “Defendant illegally filled wetlands in secret, and started up an obnoxious commercial enterprise that has materially harmed its neighbors’ enjoyment of their own homes.”

Also in January, Garside filed a motion to strike Hightower’s request for a jury trial, citing Louisiana Code of Civil Procedure to the effect that trial by jury shall not be available in an injunction proceeding. However, on Jan. 27, Third District Judge R. Wayne Smith ordered a jury trial to begin on Oct. 29 with an estimated duration of five days.

Phone calls to the offices of Garside and Hightower seeking further comment were not returned at press time.

The Speedway Web site lists the Town of Sterlington as a sponsor this season, along with Coca-Cola, Marion State Bank and several area businesses. Mufflers are mandatory for all race cars, according to the Web site.