Breaking: Judge Issues Injunction to Stop Coal Plants!!!

by: Burnt Orange Report

Tue Feb 20, 2007 at 17:02:10 PM CST

Travis County District Judge Stephen Yelenosky issued a temporary injunction today stopping tomorrow's scheduled hearing on permitting more than a dozen new coal plants, mostly in Central and East Texas, and raising new questions about the Governor's use of the executive order as a policymaking tool.

Travis County District Judge Stephen Yelenosky issued a temporary injunction today against Gov. Rick Perry's executive order that directed administrative law judges to conduct an expedited hearing schedule on a number of new coal plants. Thrown into question is a scheduled hearing for tomorrow. The injunction also raises new questions about the Governor's use of the executive order as a policymaking tool.

Those opposed to the new plants want to delay the start of the hearings. The main argument raised by the plaintiffs is that the issues related to the case are so complex that they cannot be addressed in the six-month timeframe set out in Perry's executive order. If a single permit usually merits a yearlong process, it would be unfair to address six permits at once in half that time, they said.

The judge's ruling today does not immediately delay the hearings, but asks the administrative law judges in charge of the hearing to reconsider their scheduling orders without giving consideration to the timeline ordered by the Governor. According to lawyers for the plaintiffs, administrative law judges had said they were unable to delay the hearings because of the order.

Also of interest were the plaintiffs' arguments that the fast track schedule was not allowed because it was predicated on Perry's order, which they believed exceeded his constitutional authority. In other words, if Yelenosky did what the plaintiffs invited him to do (strike down the executive order), that could have consequences on the other policy debates (HPV, the 65 percent rule) where an executive order has played a role.

Attorny David Kahne said the Constitution specifically limits the Governor to powers spelled out in the Constitution or by the Legislature. While it is a common trope in civics books to say that the Texas Governor is a "weak governor," Kahne spelled that out by pointing out that the powers of the Legislative and the Judiciary are vested in the Legislature and the courts system respectively. The Executive branch simply "consists of" six elected officials.

The Governor is authorized to do only two things in connection with the administrative hearing process, Kahne said. One is to appoint administrative law judges and the other is to set fees. Furthermore, Kahne said that the Governor's order enforces a timeframe that had specifically been rejected by the Texas Commission on Environmental Quality's rulemaking process as too short.

"The Governor is doing something he has no power to do," Kahne said.

The state countered that Yelenosky could not issue an injunction because the plaintiffs could not show that they have been harmed by the expedited hearings. The plaintiffs could address the issue on appeal after the hearing, but not before, according to Assistant Attorney General Shelley Dahlberg.

Kahne argued that the plaintiffs were harmed simply by having to go through a hearing process that was unconstitutional. He also had misgivings that future appeals would be limited to the original evidence presented in the expedited hearings. Delbaugh reassured the judge that parties could go beyond the original evidence in the appeals process.