Barton County judge accuses 126th District representative of "Activist legislation" in e-mail regarding Aquila plant

By Justin Messner

Nevada Daily Mail

Missouri Representative and Nevada native Ed Emery, found himself under attack by a Barton County judge for his role in sponsoring legislation that would allow Aquila to continue operations of a power plant in Peculiar, Mo., which had been previously ordered destroyed by the Western District Court of Missouri.

An e-mail sent from Barton County Circuit Judge Charles Curless to Emery the 126th District Missouri Rep., sited Emery for leading "the charge in approving legislation to overturn the lawful and correct decisions of the courts."

The situation began when Aquila constructed the power plant in Cass County without prior approval from either county officials or zoning commissioners. After construction of the $140 million plant began, representatives of Stopaquila.org, partnered with Cass County, filed suit against the utility company in the appellate court. The court found for the plaintiffs and ordered an injunction forbidding Aquila to proceed with any construction until they received approval from the proper authorities. According to Cindi Mayor a representative of Stopaquila.org, this did not halt the building process and eventually the plant was fully constructed while the injunction was still in place.

This was followed by several court filings, all of which were won by Stopaquila. In the most recent victory by Stopaquila, the Western District Court of Missouri found in favor of previous court findings and determined the plant was built in violation of county zoning laws. Aquila immediately filed a motion requesting the Supreme Court review the case and submitted House Bill 2468, which would allow the Public Service Commission to authorize the construction of the South Harpor Plant even after it has been built.

On April 10, a House panel led by Emery voted 6-5 to retroactively approve the plant's construction. One seat of the panel, which has been unoccupied since the beginning of the year, was filled just one day prior to the vote by Bolivar Republican Mike Parson. Parson's vote gave the panel a 6-5 decision and pushed the bill through.

Now that it has been passed by the House panel, the bill will proceed to the full House and voted on for final approval by the state.

Curless' e-mail attacked Emery's decision to seek approval of this legislation criticizing his "scandalous preferential treatment of the folks at Aquila, regarding the unlawful power plant in Cass County."

Curless wrote that the power plant was not built legally and that the courts decision was not maintained.

"Aquila knowingly built a plant in that county without a permit and in violation of county zoning laws. The trial court ordered the plant dismantled, and his decision was upheld by the Western District Court of Appeals."

In a previous interview with Vice President of Aquila's Missouri operations Ivan Vancas, he said, prior to the construction of the South Harper plant, Aquila and other major utilities were capable of building facilities as long as they held a general certificate.

He said, "The law, the way that it had been interpreted by both us and the PSC, is that a utility did have the right to build the facilities that it's customers needed in it's service territory. The courts felt that what the law really said was that utilities had the right to construct poles and wires and cables and transformers under its general certificate, but, something like a power plant required specific review for each facility and a specific certificate, and that had previously not been the practice. So, we were operating under the best interpretation of the law and the rules. The court basically changed the rules by giving better clarity to what the law meant. Unfortunately, because we had done that before the court ruled, our facility did not have that certificate and was not grandfathered, if you will, once the ruling came out. So we are now at the 11th hour ... we are essentially one step away from having to dismantle that facility should the supreme court choose not to hear our case, and we won't know whether the supreme court would hear our case until after the legislative session is over."

In a phone interview with Emery Thursday, he spoke of his respect for Curless, but, said he did not agree with Curless' stance on the issue.

"I'm disappointed that the judge is disappointed," he said. "I've known judge Curless for a considerable amount of time, I respect him as a judge.

"I'm always concerned when men of integrity are concerned about legislation. So, I take his comments very seriously. But, I don't agree with his analysis of this legislation."

Emery said the bill was not about the buildings operations, rather the expense in destroying a power plant and then rebuilding it.

"It's not about keeping it operational. It's about whether they should tear down the plant and build it again in the same place. That just seems to me to be a terrible waste of resources."

Since its push for a legislative solution, Aquila has agreed to pay approximately $1.8 million to Cass County for legal expenses and fines.

Curless' e-mail to Emery can be viewed in its entirety online at, www.nevadadailymail.com, along with a press release from state Rep. Shane Schoeller and Emery regarding their reasoning for sponsoring the bill.