IN THE MATTER OF THE AT PLlCATION OF ENVIRONMENTAL COMPATIBILITY AND SQUTEIWESTERN ELECTRIC POWER COMPANY FOR A CERTIFICATE OF

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1 IN THE MATTER OF THE AT PLlCATION OF SQUTEIWESTERN ELECTRIC POWER COMPANY FOR A CERTIFICATE OF ENVIRONMENTAL COMPATIBILITY AND PUBLIC NEED FOR THE CONSTRUCTION, OWNERSHIP, OPERATION AlyD MAINTENANCE OF A 138 KV TRANSMlSSION LINE ORIGINATING AT THE SE TEXARKANA STATION LOCATED IN TEXARKANA ARKANSAS AND TERMCNATING AT A PROPOSED STATION TO BE CONSTRUCTED AT THE JOFIN W. TURK, a GENERATION FACILITY LOCATED IN HlEMPSTEAD COUNTY, ARKANSAS AND FOR THE PROPOSED TURK STATION AND RELATED FACILITIES PETITION TO INTERVENE COME NOW, Sim Club, hc., by and through its Arkansas Chapter, and the National Audubon Society, Inc. and the Arkansas Audubon Society, Inc. (colfectively Petitioners ), and for their petition to intervene in this proceeding pursuant to Ark. Code Ann and Rule 3.04 of the Arkamas Public Service Commission s ( Commission ) Rules of Practice and Procedure, state as follows: 1. On January 15,2008, Southwestern Electric Power Company ( SWEPCO ) filed its application with the Commission seeking the granting of a Certificate of Environmental Compatibility and Public Need ( CEPCW) for the construction, ownership, operation and maintenance of a transmission line to serve the proposed Turk power plant in Hempstead county, Arkansas. 1

2 shall include: 2. Ark. Code Ann (a)(4) states that parties to a certification proceeding Any dumestk ttonwum corporatwn, formed in whole or in pari to promote cuitservizdiopp or natwd beautv, to promote energy conservation, to protect tke envirunment, personal health, or other biolo&al values, to represent commercial and indwbid groups, or to promote the orderly development of the of the areas in which the facility is to be located, where such a person or organization has an interest which may be directed affected by the Commission s action and which interest is not adequately represented by other parties, if such a person or corporation has petitioned the commission for leave to intervene as a party within thirty (30) days after the in the public notice as the date of filing the application. Id* (Emphasis added) 3. Rule 3.04 of the Arkansas Public Service Commission s RuIes of Practice and Procedure also allows the Commission to authorize any person with an interest that may be directly dected by the Commission s action to intervene. In particular, Rule 3.04 provides: Id. Any person having an interest which may be directly affected by the C~mtni~~ion~~ action and which interest is not adequately represented by other parties may petition the Commission for leave to intervene as a party in any formal proceeding up to thirty (30) days prior to the date set for the hearing in such proceeding, but not afterward, except for good cause shown. 4. The Sierra Club, Inc. (hereinafter Sierra Club ) is a nonprofit corporation organized under the laws of California, with offices and programs authorized and doing business in the State of Arkansas through its Arkansas Chapter. The Sierra Club is the oldest grassroots environmental organization in America, consisting of approximately 1.3 million members and supporters dedicated to exploring, enjoying, and protecting the wild places of the earth; to practicing and promoting the responsible use of the earth s ecosystems and resources; to educating and enlisting humanity to protect and restore the quality of the natural and human environment; and to using all lawful means to carry out these objectives. The mission of the 2

3 Sierra Club is to protect the natural environment and promote the responsible use of the earth s ecosystems and resources. The Sierra Club promotes smart energy solutions that meet our energy needs while heiping stop global warming, and while protecting communities and the natural environment from harmful pollutants created by the extraction, transportation and burning of coal. 5. The National Audubon Society, Inc., is a not-for-profit corporationy organized under the laws of the State of New York, has more than one million members and supporters, offices in 23 states, and a presence in all 50 states through more than 450 certified chapters and through its nature centers, sanctuaries, and education and science programs. The Arkansas Audubon Society, Inc. is an Arkansas nonprofit corporation and serves as the local. chapter of the National Audubon Society. Collectively, National Audubon Society and the Arbas Audubon Society, hc. are referred to herein as Audubon. Audubon s mission is to conserve and restore natural ecosystems, focusing on birds, other WiIdlife, and their habitats for the benefit of humanity and the earth s biological diversity and to otherwise protect the environment. 6. Lands located on and nearby the proposed transmission line, power plant and associated facilities are ecologically important and environmentally sensitive areas (the Mected Ecosystem ). The Affected Ecosystem includes Grassy Lake and the Little River Bottoms, which includes the largest virgin natural cypress swamp area in Arkansas and is a habitat for rare and endangered species as identified by the United States Fish and Wildlife Service, species of conservation con- as identified by the Arkansas Natural Heritage Commission, and important bird areas as identified by Audubon. The Affected Ecosystem includes flyways for some of the most significant waterfowl in this hemisphere, The Affected Ecosystem includes wetlands and other important wildlife habitat. The Affected Ecosystem will 3

4 be adversely impacted by the construction and operation of the proposed transmission line, the power plant and the associated facilities, including but not limited to impacts to ecosystem habitag flora and fauna, and global climate change. 7. No party presently before the Commission is positioned so as to represent directly the interest of the Petitioners. 8. Ark. Code Ann states that in granting a certificate for the location, financing, construction, operation, and maintenance of a major utility facility the Commission shall fd and determine: (1) The basis of the need for the fad&; (2) That the facility wiii serve the public interest, eonveniece, md necess&; (3) The nature of the probable envirunrtoepttai impact of the facilitv; (4) That the fucilw rerrresertts an accentable adverse environmerntd bact, comideriw the st& of avaikbk techobm, the reqrsiremenh of the cus~omm of the mplkant, for uti& sewice, fhe nature and ecunomics of fhe proposal, and the various alternative, if any, and other perbinent curasidemtwns; (5) Tbe nature of the probable economic impuct of the facility; (6) That the facility financing method either as proposed or as modified by the commission represents an acceptable economic impaef, considering economic conditiom and the need for and cost of additwad mbiic ufilidv sewkes; (7) In the case of an electric transmission line, that such a facility is not inconsistent with known plans of other electric svsfem sewking the state, which plans have been filed with the commission; (8) In the case of a gas transmission line, that the location of the line will not pose an undue hazard to persons or property along the area to be traversed by the line; (9) That the enem eficieiecv of the power production facility has been given significant weight in the decision-making process; and (lo) That the location of the facility as proposed conforms as closely as practicable to applicable state* regional, and local haws and regdatwres issued thereunder, except that the commission may refuse to apply all or any part of any regional or local law or regulation if it finds that, as applied to the propod facility, that law or regulation is unreasonably restrictive in view of the existing technology, or of factors of cost or economics, or of the needs of consumers whether located inside or outside of the directly affected government subdivisions; 4

5 (11) The interstate benefsds expected to be achieved by the proposed construction or modification of a major electric transmission facility, as defined in , located within a national interest electric transmission corridor; and (12) That any conditions attached to a certificate for the construction or modification of a major electric transmission facility, as defined in , located within a national interest electric transmission corridor do not intedere wiyh reduction of electric trammission empestion in interstate commerce or render the project economically infeasible. Id (Emphasis added). The application fails to adequately address these factors and there is insufficient information to allow the Commission to make the findings required to approve the application. Furthermore, proper consideration of the above factors will result in a denid of the certificate. 9. Ark. Code Ann (5)(A) identifies the scope of the term Yacility, which is defined as an electtic generating plant and associated transmrtation and sforaee fadities for fuel and other facilities designed for, or capable of, operation at a capacity of fifty (5) megawatts or more. Notably, the transmission lines at issue in this docket wodd be included in this defmition. Finally, Ark Code Ann S-502(e) provides Petitioners the right to expeditious resolution of all matters concerning the location, financing, construction, and operaiwn of electric generating plants and electric artd gas trammhsion iines and msoci&d facilities in a single proceeding.., Id (Emphis added). 10. While Petitioners recognize that the Commission previousiy addressed the issue of need in Docket , none of the filing requirements and none of the public notices required for a CECPN application were followed in Docket U. Petitioners also recognize that the Commission also awarded a CECPN for the electric generating plants which will be served by the Eransmission lines in Docket Petitioners were not phes to those dockets and thus cannot be barred fiom now raising all matters that the legislature provided should be resolved in a CECPN proding. See Vun Curen v. Arkaasas Prof2 Bail Bondsman 5

6 Licensing Bd., 79 ArkApp. 43, 84 S.W.3d 47 (2002) (collateral estoppel cannot be used to bar Petitioners fiom fully and f&ly litigating the issues of need and of the power plant because Petitioners were not a party to the prior proceedings before the Commission}; Styers v. Johnson, 19 Ark. App. 312,720 S.W.2d 334 (1986) (res judicata cannot be enforced aginst a party who was not a party to the original proceeding). 1 I. Furthermore, the Commission expressly reserved the issue of need relating to specific proposals in Docket U. In its ruling, the Commission stated, Further, nothing in this order represents a Commission finding (1) regarding any specific proposal(s) SWEPCO m y proffer to address its need for additional power supply resources... Docket U, Order 3. Nothing in Docket can be used to prohibit parties from litigating all of the issues that are relevant to this application under Afk. Code Ann and (requiring the Commission to address issues of need and environmental impact of the facility in the same docket). 12. The Commission s Order No. 1 1 in Docket U provided that this transmission line docket could not be initiated until after review and input is provided by the SPP in order to assure that the transmission lines not only move the power from Turk but improve congestion in the area. Docket U, Order No. 1 1, Condition No. 2, page 74. There is nothing in the application for the transmission docket that demonstrates that this input has been provided by the SPP. 13. In the most recent proceeding before the Commission which involved both a power plant and associated transmission facilities, which coincidentally was a proceeding that was initiated by SWEPCO, the Commission consolidated the dockets for the power plant and the associated transmission facilities in a single proceeding. See, In the Matter offhe Joint 6

7 Application of Southwestern Electric Power Company, Docket No. U-2532 (application for a CECPN for the Flint Creek power plant) and Docket No. U-2533 (application for a CECPN for the associated transmission lines), Order dated May, 1974 (finding that it is in the public interest to consolidate the two dockets, and ordering that the two dockets be consolidated). 14. Petitioners have a direct and substantial interest in this proceeding relative to their interest in the Affected Ecosystem. Petitioners wish to participate fully in this proceeding and in any other proceeding relating to this proceeding as should, by law, be considered in a single proceeding. Petitioners have not identified and evaluated all of the issues associated with the transmission line, the power plant and related facilities, and reserve the right to address any and all issues relating to the application, and ai1 issues relating to such other applications as should, by law, be considered in a single proceeding. 15. Pursuant to Rule 2.03 of the Commission s Rules of Practice and Procedures, the following person should be included on the official service list in this proceeding and all communications concerning this matter should be addressed to the following: Ilan Levin Environmental Integrity Project 1002 West Avenue, Suite 300 Austin, Texas ilevin@environmentalintegrity.org WHEREFORE, Petitioners requests that they be permitted to intervene as a party in this proceeding, with aii rights attendant thereto. 7

8 "E Re ctfully submitted, A+.,& :, Ih Led Environmental Integrity Project 1002 West Avenue, Suite 300 Austitl, Texas Attorneys for Sierra Club, National Audubutl Society, hc. and Arkansas Audubon Society, Inc. CERTIFICATE OF SERVICE I, Usn Levin, hereby state that a copy of of record by U.S. MaiI, postage prepaid, on this pleading was served on the parties 8