The review appeal of AEP/Southwestern Electric Power Co. before the Arkansas Supreme Court filed in Little Rock on Monday argues that the company played by the rules in gaining the Arkansas Public Service Commission’s approval of the John W. Turk, Jr., Power Plant, but the Arkansas Court of Appeals changed those rules after the fact.

In a three-page initial filing before the high court, SWEPCO argued six points of appeal from the June 24 decision of the Court of Appeals, particularly concerning the appeals court’s reading and interpretation of the “plain language” aspect of the Utility Facility Environmental and Economic Protection Act, Arkansas Code Annotated, section 23-18-501, and following.
Where the Court of Appeals said it would follow a standard of review which allowed it to interpret its first impression of the “plain language” of the statute, SWEPCO’s attorneys said the appeals court used the wrong standard of review in doing so.

“The Act has not previously been interpreted by the Courts and, therefore, this case presents issues of first impression involving a matter of substantial public interest: the APSC’s timely certification of generation and transmission facilities,” SWEPCO’s filing notes. “The Court of Appeals’ Opinion (a) is in conflict with prior holdings of this Court regarding the final order rule and standard of review (b) otherwise errs with respect to issues of first impression in Arkansas, issues of substantial public interest, significant legal issues needing clarification or development, and substantial questions concerning the construction or interpretation of statutes.”

The company took issue with the plain language reading of the appeals court regarding the requirement for a “single proceeding,” or one docket, in which the PSC would consider all matters of need, construction, finance, operation and transmission requirements for the Turk power plant.

Arguing that the appeals court relied upon the application of a November, 2007, PSC order as the controlling decision of the Commission, rather than a later December, 2007, order, the company said the appeals court ignored what was essentially the final decision of the PSC.
“This ruling abandons 150 years of final-order precedent,” the filing states.
SWEPCO argued that the appeals court, “...erroneously applied the rules of statutory construction by requiring the review of multiple ‘major utility facilities’ in a single proceeding when the plain language of the Act as codified... requires a separate CECPN for each major utility facility.”

The company said that the appeals court did not rely upon the operating sections of the statute to render its reading of the statute, but rather upon “a general legislative finding, which it deemed controlling...”
“This violated long-held rules of statutory construction...,” the company said.
SWEPCO also argued that the appeals court applied its own reading to the statute, then used that reading to overturn the PSC, without a showing of harm to private hunting clubs opposing the plant, thereby violating established legal precedent in a 2007 utility rate case which requires that “something more than mere error is necessary” to overturn a final decision of the PSC.

“The Court of Appeals substituted its judgment on the APSC’s specific findings of fact regarding alternative locations...,” contrary to statute and established precedent, the company said.

SWEPCO also argued that the appeals court ignored a change in the law which allowed the PSC to determine the “basis of the need for the facility” in the Certificate of Environmental Compatability and Public Need application by the company, rather than the standard the Court of Appeals applied, which required a system-wide power supply resource needs determination.