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Anti-Coal Forces Lay Out Case in Waco and Hope They Get to Do it in Austin

Steve Susman is the attorney leading the anti-TXU coal plant crusade down in Austin this morning.

Last night in Waco, Steve Susman -- the Houston attorney working pro bono for Mayor Laura Miller's Texas Cities for Clean Air Coalition -- laid out the group's case against TXU and the 11 coal-fired plants the electricity provider wants to build as soon as possible. It was a sneak peek at what Susman may or may not say in Austin this morning, assuming the permit hearings -- regarding six of the 11 proposed plants -- take place as scheduled in front of two administrative judges at the State Office Of Administrative Hearings. Right about now, Miller and Susman are finding out precisely what State District Judge Stephen Yelenosky meant yesterday when he wrote that Governor Rick Perry "lacks [the] authority" to issue an executive order that fast-tracks the coal-plant permit process. The hearing might be pushed back indefinitely -- a couple of years, could be -- or proceed as planned.

"We could get there, and SOAH might tell us they're not basing the hearings on Perry's executive order anyway," Susman told Unfair Park last night. "They might say, 'Are all the parties ready? Good, then let's go.' Or they might tell us to go home." (Perry, for his part, has dismissed Yelenosky as nothing more than a "single liberal judge.")

Either way, Susman and Miller spoke last night in Waco for a good hour, in front of a crowd that included folks ranging from State Representative Rafael Anchia to Irving Mayor Herb Gears to Public Citizen's Tom "Smitty" Smith to some folks who rode buses from Reunion Arena for a free boxed lunch. They were in Waco "on the eve of the great battle," as Miller put it, "to give you our case." Some of which, it turns out, is based on classified documents from TXU -- the contents of which Susman more or less revealed last night.

According to the attorney, who is no slouch, the TCCAC will present 11 witnesses during the hearing to back up three claims: One, that TXU is lying when it says that Texas will face an energy shortage in 2008 if it doesn't receive permision to build its 11 plants; two, that the health risks associated with everything from carbon dioxide emissions to mercury output will negate any cheap-energy benefits; and three, that TXU wants to fast-track the plants so they can shut out competitors who might want to come into the state offering cheaper and cleaner alternatives.

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"We intend to prove [building the plants] has nothing to do with providing affordable electricity for Texans," Susman said. "It was all about locking competition out of the generation business in Texas." He said that in the last week, during the discovery process, TCCAC received from TXU "confidential documents" that show TXU has already signed exclusive contract with Bechtel Corporation and another contractor to build the plants. And he says TXU's already purchased the turbines, so that as soon as SOAH approves the permits in April, then TXU can start building their plants and have them operational within the year. (Actually, the process will take longer: After the two SOAH judges rule by April 23, then it goes to the Texas Commission on Environmental Quality, which would likely approve SOAH's recommendation. Then it could wind up in state district court and beyond.)

"I thought it went well," Miller told Unfair Park on the way back to Dallas last night. "I was very pleased with Susman's remarks, because it was so fascinating to hear the inside baseball of the case. He talked about things I didn't know, because he's the one in the trenches with the experts the last couple of weeks assimilating the various information and documents he got last week. I knew the overall picture. I knew about the confidental documents -- I had to sign a confidentiality agreement today in order to see the documents -- and I knew in the big picture what they meant, but I didn't know some of the details. I knew about the health impacts, obviously. That's what I've been focused on. And my suspicion was we could discuss need and alternatives and demand. But I've been looking at the blades of grass, and he showed it to us from 10,000 feet up, and he showed us the motivation isn't affordable power for all Texans, but making a dollar, and this is how they plant to do it."

It was a genius move too: After all, should the SOAH judges not allow those docs into evidence, then Susman won't get to point to Bechtel and secret deals. He may be stuck talking about parts per billion and carbon dioxide emissions -- important stuff, but not nearly as sexy to people who can easier deal with Big Coal and backroom conspiracies than particulate matter they can't see.

"But what counts more than public outrage is Wall Street, and if you shake the confidence of their investors by showing them what's really going on in the boardroom, that's what counts," Miller says. The fun's getting underway now in Austin. Or not. Stay tuned. --Robert Wilonsky

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