Va. Supreme Court hears from group opposed to coal-fired power plant in Wise

An environmental group took its fight against a $1.8 billion coal-burning power plant in Wise County before the justices of the Virginia Supreme Court yesterday.

Cale Jaffe of the Southern Environmental Law Center told the high court it's unconstitutional to require that the plant be in Southwest Virginia coal fields and be able to burn Virginia coal because those requirements favor one state's coal over another's.

Lawyers for the State Corporation Commission, which approved the plant, and Dominion Virginia Power disagreed. The environmental-law center must prove an effect on interstate commerce, said E. Duncan Getchell, representing the power company.

"They didn't do that," he argued.

The law center appealed the SCC's approval of the plant to the state Supreme Court, arguing that it violates the U.S. Constitution's Commerce Clause.

The center also has two filings in Richmond Circuit Court challenging the two permits issued for the plant last year by the state Air Pollution Control Board. Opponents contend the board acted illegally by not limiting the plant's emissions of carbon dioxide.

Dominion Virginia Power maintains that the plant will have modern pollution controls, and it will provide jobs and revenue for Wise County. Dan Genest, a Dominion Virginia Power spokesman, said the plant is expected to be completed by 2012.

Yesterday, Justice Donald W. Lemons said, "This cases rises and falls on the phrase: 'utilizes Virginia coal.'" He then asked Jaffe where it was written that the power company was required to burn Virginia coal, in any amount.

Is it not the case, asked Lemon, that, "this doesn't have anything to do with the operation of the plant -- it has to do with the permitting of the plant?"

Jaffe said the requirements for the plant -- that it be built in the coal fields of Southwest Virginia and be able to burn Virginia coal -- dictated the type of plant and its technology that is now under construction.

"Once the plant is online, we're stuck with it," Jaffe said. A preference for a certain type of coal can be protectionist and discriminatory, he argued. There is "no question a preference for Virginia coal here," Jaffe said.

John F. Dudley, representing the commission, said the plant was required to be able to burn Virginia coal, but there was no requirement it burn Virginia coal. The plant is required only to use the most economical fuel.

A ruling is expected within two months.

Contact Frank Green at (804) 649-6340 or .