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Regulators exempt Mohave County power plant from environmental review

power lines
handout | agency | https://media.srpnet.com/photovideo-galleries/ --under transmission and distribution

The Arizona Corporation Commission voted to exempt a 200-megawatt power plant expansion in Mohave County from environmental review, upending the way the commission has regulated power plants for decades.

State law requires utilities to obtain a certificate of environmental compatibility before building power plants larger than 100 megawatts.

But UniSource Energy asked regulators to rule the company should not have to undergo an environmental impact assessment for a proposed 200-megawatt expansion of the company’s Black Mountain Generation Station in Mohave County.

UniSource attorney Meghan Grabel cited the specific language of the law, which defines a power plant as a “separate thermal electric, nuclear or hydroelectric generating unit with a nameplate rating of one hundred megawatts or more.”

That, she said, means the Mohave County expansion — which will be made up of four individual 50 megawatt units — should not be forced to undergo environmental review.

“This statute is not ambiguous. It could not be more clear,” she said.

The Corporation Commission agreed, voting 4-1 to overturn a previous decision by the Arizona Power Plant and Transmission Line Siting Committee denying the request.

Commissioner Nick Myers said the plain language of the law exempts UniSource Energy’s Mohave County project from review.

“Because the statute is clear and unambiguous, we must apply the plain language of the statute,” Myers said.

He said only the state legislature, not the Corporation Commission, can rewrite the law.

“We might not agree with the policy, but we simply lack the authority to rewrite the statute and achieve a different policy outcome,” Myers said.

But critics said the law is more ambiguous than Myers let on. They pointed to language that legislators who passed the law in 1971 attached to the statute.

“The legislature hereby finds and declares that there is at present and will continue to be a growing need for electric service which will require the construction of major new facilities,” according to a legislative intent clause included in the law, which defined those major facilities as plants rated at 100 megawatts or more. “It is recognized that such facilities cannot be built without in some way affecting the physical environment where the facilities are located.”

Patrick Woolsey, an attorney for the Sierra Club, said that language undermines UniSource’s argument that it can circumvent review by dividing a plant in multiple smaller units.

“The legislature intended for the committee to evaluate the impacts of entire major new facilities, not just individual components within those facilities. … If an applicant is allowed to avoid CEC review by mischaracterizing large projects as several smaller ones, that would defeat the legislature's intent that environmental impacts of major facilities be evaluated in a single proceeding,” Woolsey said.

In voting to overturn the Power Plant and Line Siting Committee’s decision, the Corporation Commission relied on a legal opinion from its general counsel, Tom Van Flein, who was hired by the commission in March after serving as Congressman Paul Gosar’s chief of staff for over a decade.

Van Flein told commissioners that the question of whether the committee had jurisdiction under the law to require the Mohave County expansion to undergo an environmental review “is reasonably disputed.”

But, ultimately, he said the letter of the law made it clear that the statute only applied to individual units rated 100 megawatts or higher.

“And so in this case the statute that the Arizona Legislature enacted in 1971 chose a threshold that staff thinks the Commission is obligated to follow,” Van Flein said. “That it's not allowed to rewrite the statute, because it would make good sense today or because you want to adopt a policy because it's not an ACC policy, because it's a legislative statute granting jurisdiction.”

Critics said that effectively contradicts the way the commission has interpreted the law for over 50 years. They pointed to several previous votes – including a vote by the very same commission last year to approve a gas plant expansion in Coolidge – that required similar power plant projects to apply for a certificate of environmental compatibility.

“In all those prior cases, they found that they had jurisdiction,” said Adam Stafford, an assistant attorney general and former Corporation Commission policy advisor who chairs the committee that initially rejected the request. “This is brand new. The commission has never interpreted the statute to mean this before.”

But Van Flein was not the commission’s general counsel when it made those previous decisions. Robin Mitchell, the commission’s general counsel when it voted on the Coolidge project in 2023, accused Van Flein of being unqualified for the position in a notice of claim sent to the commission earlier this year, citing his lack of relevant legal experience.

Van Flein did not respond to a request for comment.

According to his LinkedIn page, prior to working for Gosar, he founded a law firm in Alaska dealing with “professional liability, product liability, employment law, appellate law, professional licensing and credentialing, insurance coverage, and political consulting.”

Wayne Schutsky is a broadcast field correspondent covering Arizona politics on KJZZ. He has over a decade of experience as a journalist reporting on local communities in Arizona and the state Capitol.
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