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Judge affirms Kemper decision

By Amy McCullough

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Harrison County Chancery Judge Jim Persons has affirmed the decision of the Mississippi Public Service Commission to allow the construction of Mississippi Power Company’s $2.4 billion clean coal plant in Kemper County.

The decision states:

“Under the laws of this State, this Court must give great deference to the judgment of the Commission. Its orders are presumptively valid and the party appealing a Commission decision has the burden of proof. This Court does not sit as a fourth Commissioner, but as an appeals court with a limited standard of review. It may not substitute its judgment for that of the Commission. The Court finds that the Commission met the minimum standards required. Therefore, finding no error on the part of the Commission, the order of the Commission granting MS Power a certificate of public convenience and necessity for the Kemper Project is affirmed.”

Environmental group the Sierra Club sued the Mississippi Public Service Commission, calling its May 2010 decision arbitrary and capricious. After a series of hearings, the Commission issued an order in April 2010 containing financial restrictions that Mississippi Power said would make the plant impossible to rebuild. After Mississippi Power filed for a rehearing, the Commission issued its second order which eased restrictions. The power company then announced it would accept the conditions and build the plant.

Sierra argued that there was not sufficient evidence in the record to warrant a new decision.

The Kemper facility, called Plant Ratcliffe, is being built between Mississippi 493 and Mississippi 495 near the Liberty community. It will use a process that converts lignite coal into a synthesis gas that can generate electricity. The plant will produce 582 megawatts of usable generation and will also be the first commercial-scale plant in the nation to capture its carbon dioxide emissions.

Judge Persons’ decision in no way criticize the Commission, unlike his comments from the bench at the Feb. 14 appeal hearing.

“My issues are raised from the orders of the Commission … unprecedented risk, unprecedented cost. … I don’t find where the Commission has addressed the rate impact of Kemper. … The orders we have here – frankly, I don’t think are well done,” Persons said.

Judge Persons also said that in its second decision, the Commission did not address how the new, eased financial restrictions satisfied concerns the Commission had raised in its first decision regarding the public interest.

State Sierra Club director Louie Miller said the group will continue to fight the decision.

“We will appeal this decision at the state Supreme Court. We respectfully disagree with the judge, and we think the flip-flop of the Commissioners was a bad decision and not based on any finding of fact. We will ask for a hearing on an expedited basis,” Miller said.

The Sierra Club originally filed its appeal in Harrison County Chancery Court in June 2010 and also at the Mississippi Supreme Court because the law was unclear regarding jurisdiction. Mississippi Power made a motion to keep the decision at the state Supreme Court. But in October the Court sent the suit back to Harrison County.

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