After the Arizona Corporation Commission voted last week to exempt an energy company from an environmental review of a power plant expansion, environmental and clean energy groups say they will fight back.
Last week, the commission voted to reverse an order from the Arizona Power Plant and Transmission Line Siting Committee requiring UniSource Energy to obtain a Certificate of Environmental Compatibility for its proposed expansion of the Black Mountain Generating Station near Kingman. Sandy Bahr, director of the Sierra Club’s Grand Canyon chapter, said the vote goes against decades of precedent.
“We’ve been doing it this way for 50 years in Arizona,” Bahr said. “This is a brand new interpretation.”
Under state law, power plants with units of 100 megawatts or more are required to obtain Certificates of Environmental Compatibility from the Line Siting Committee. UniSource argued that its expansion project would only add units that are 50 megawatts and that the project should not need an environmental certificate even though the total wattage of the units would be greater than 100 megawatts.
The commission agreed, saying state statute left little room for any other interpretation.
“There was a spirited discussion on this issue and the Commission devoted a lot of time considering the different perspectives, reaching the ultimate conclusion that the law as written left the Commission no choice but to disclaim jurisdiction,” said Doug Clark, executive director of the commission, in a statement released after the vote.
That means the commission will no longer have jurisdiction over plants under 100 megawatts, which the commissioners say is the original intent of the law.
Autumn Johnson, executive director of the Arizona Solar Energy Industries Association, said that interpretation doesn’t make sense because the state Legislature included a policy statement for the law when it was passed.
“We know very well what the intent of the Legislature was and it’s contrary to what the commission did,” Johnson said.
In a filing to the commission, Johnson included the policy statement written by the Legislature, which says the purpose of the statute is to provide a public forum for the resolution of issues related to the location of electric generating plants. Johnson said the commission’s decision will affect the ability of consumers and other interested parties to voice concerns about power plants and their impacts.
Johnson said groups like AriSea and the Sierra Club that acted as intervenors in the case plan to request a rehearing and are prepared to fight the decision in court if necessary a process that could take a year or more. The groups are worried about the lack of oversight for utility companies and the potential for environmental harm that will go uninvestigated if the decision is left unchallenged.
Bahr said there are no plans yet to address the issue via legislation partly because the party makeup of the Legislature could change in November.
“We don’t know what the Legislature is going to look like next session and we’ve been fighting the Legislature on providing more exemptions to the power plants in the line siting committee process,” Bahr said.
One bill currently on Gov. Katie Hobbs’ desk would allow companies to replace transmission cables and existing structures without obtaining a new CEC if the replacement is part of a plant that has already undergone environmental review.
Johnson said there’s no need to change the existing legislation because its intent is clear. What isn’t clear, she said, is why the commission has upended precedent.
“Nobody has asked them to explain the flip-flop,” Johnson said. “Nobody has asked them to explain how we could possibly have been getting it wrong for five decades.”
She attributes the decision to a change in legal representation at the commission. In February, the commission hired the former chief of staff for Republican U.S. Rep. Paul Gosar to head its legal division, a choice that was met with criticism.
“I think that this commission, and apparently the new attorneys running the legal division, want to remove any and all obstacles to building additional fossil fuel resources and they generally are skeptical of the clean energy transition,” Johnson said.
In an emailed statement, Clark said the decision was not influenced by new staff but by multiple lawyers who have worked at the commission for years.
“It was unanimously concluded between the Utilities Division and the Legal Division that the law was clear and the precedence for the prior 50 years demonstrated that the Commission had never asserted jurisdiction in this circumstance,” Clark’s statement said. “No party or intervenor provided even one case where the Commission exerted jurisdiction over an applicant in this scenario since 1971.”
Clark said the remedy to the situation lies with the Legislature, not the commission.
The groups will have 20 days to request a rehearing once the final decision is issued, which Johnson said hasn’t yet happened. If the commission denies the request for rehearing, the intervenors can appeal to the Superior Court.
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