A state law authorizing construction of a power station in southwestern Virginia is unconstitutional because it requires the plant to burn Virginia coal, a lawyer for environmentalists challenging the project told the Virginia Supreme Court on Wednesday.
"Explicit preferences such as this violate the Commerce Clause," attorney Cale Jaffe of the Southern Environmental Law Center said during a half-hour hearing.
Jaffe represents four groups seeking to overturn the State Corporation Commission's approval of a 585-megawatt power plant Dominion Virginia Power is building in the heart of southwestern Virginia's coalfields. Dominion says construction of the plant is more than 20 percent complete and it is scheduled to begin operating in 2012.
John Dudley, an attorney for the SCC, argued the statute only applies pre-construction and requires that the plant is capable of burning Virginia coal. After construction, he said, a separate law kicks in requiring the plant to burn the cheapest fuel available.
"The plant, once it got sited where it got sited, is going to burn some Virginia coal," said Duncan Getchell, an attorney for Dominion.
He said the opponents failed to show how a requirement that the plant burn an unspecified amount of Virginia coal would damage any other coal-producing state. That requirement could be met by burning a single piece of locally available waste coal, he said.
Justice Donald Lemons cautioned Getchell that he seemed to be contradicting the SCC's claim that the plant only has to be capable of burning Virginia coal. Getchell said he was merely suggesting that even if the justices reject the SCC's view, the challengers still failed to meet their burden of proof that the Virginia preference is unconstitutional.
The law center's clients are the Southern Appalachian Mountain Stewards, Appalachian Voices, the Chesapeake Climate Action Network and the Sierra Club.
A ruling is expected in April.
In a separate case in Richmond Circuit Court, the groups are challenging the legality of air emission permits issued for the $1.8 billion project.
