Coal Plant Lawyers: Global Warming "For Kings And Presidents...To Decide"

AUSTIN - A lawyer for TXU Corp has told the judges who will rule on whether it can build a slew of new coal-burning power plants here that global warming is not on the docket, and none of their concern.

"It's for kings and presidents and world leaders to decide how to address global warming," argued TXU attorney John Riley. "It's not for air permit hearings."

With no kings in sight, Texans who oppose TXU's plan to build 11 new plants across the state are nonetheless looking to two administrative judges to block the plan.

They argue it would double CO2 emissions here overnight. Texas already emits more of the greenhouse gas than any other state in the country.

But in court Wednesday, Riley said all that was beside the point.

"What we can do to forestall global warming?", he asked. "The scientists still quarrel over it. But it is a very big issue."

"For instance, India is going to build 300 of these plants over the next 10 years, and China 500. My point is, 10 plants is not the significant contributor to the problem that the counsel" is trying to make it into.

In a courtroom where the air conditioner was running on an 80-degree day in February, Riley also questioned whether the US should even want to get ahead of India and China on the issue.

"Does the U.S. want to take that step before others do?"

Lawyers for the Texas Clean Air Cities Coalition say TXU is in a rush to build the plants not because the state needs the extra electricity, but because it wants them built before Congress can pass legislation aimed at reducing the greenhouse gases that are a major contributor to global climate change.

Their pro bono lead attorney, Steve Susman -- named by Who's Who Legal as the best commercial litigator in the world last year -- says TXU then could benefit further when carbon emissions are regulated, under a cap and trade program that would allow polluters to sell carbon credits.

"I think they're thinking that's a great deal," John Turner, another lawyer on Susman's team, said in an interview after the proceedings.

In court, Riley mocked the idea of "backroom deals. It's very dramatic, and I appreciate the drama."

Preparing for the possibility of CO2 regulation, he said, "is no better and no worse than any other company seeing trends and trying to prepare for them."

Court documents obtained from attorneys for the opposition show that in a conference call in August of '06, TXU officials did speak in detail about how CO2 regulations might work to their advantage.

"While we are not suggesting that a cap and trade program is the right answer, it is one of the many scenarios we modeled," said Jonathan Siegler, the company's vice president for strategy and mergers and acquisitions, according to a transcript.

"If a program similar to the Kyoto Protocol was put into effect in the US," Siegler said on the call, "it would impact TXU in the following ways. Based on the average allocations in the UK, TXU would receive allocations for 70 percent of its current CO2 emissions."

In other words, Susman said, the higher the emissions going in, the better for the company.

Though TXU has announced that it will reduce overall ozone emissions by 20 percent after building the new plants, lawyers for the opposition also argued the company appears to have no specific plan to do that.

Riley called that a misrepresentation, and continued to complain until one of the judges, Kerry Sullivan finally held his hand up and shouted, "Enough!"

The permit hearings were taken off the fast-track this week when a state district judge here ruled Gov Rick Perry lacked the authority to expedite them.

At the hearing, various environmental groups opposed to the plants asked the judge for more time to collect testimony from expert witnesses, and got it.

TXU's Riley called their requests for more time "preposterous. That's equivalent to saying let's delay forever; that's absurd." The judges disagreed, however, and said they would hear the rest of the case in June.