Controversial Aquila power plant in Kansas City takes legal hit

Daily Record and the Kansas City Daily News-Press, Mar 5, 2008 by Aaron Bailey

Aquila suffered a setback Tuesday in the latest round of an ongoing legal battle over its controversial power plant in Cass County.

The $150 million power plant located just south of Peculiar has been under fire since its construction in 2004, due in large part to the Kansas City-based utility's decision to construct the plant without seeking prior approval.

Tuesday's unanimous decision from the Missouri Court of Appeals Western District further asserts that Aquila did not follow the proper legal procedure before building the plant, leaving the possibility the plant will be forced to be torn down.

Aquila spokesman Al Butkus said they will either request a re- hearing on the matter or appeal the decision to the state's high court.

Aquila built the South Harper power plant without seeking zoning approval from Cass County officials or the go-ahead from the Public Service Commission.

And after the appellate court affirmed an injunction to dismantle the power plant in 2005 because it was built illegally, Aquila tried to get approval for the plant's construction retroactively from the PSC.

The court ruled Tuesday the PSC doesn't have the power to issue the permits after construction has begun.

Kansas City attorney Cynthia Reams Martin, who represented Cass County in the action, said she was pleased with the decision.

Cass County and StopAquila.org, a citizens' group opposed to the power plant, sought the action against Aquila after the PSC issued the retroactive permits.

The court said the state statute governing the PSC does not grant it power to issue the go-ahead for construction of a power plant retroactively.

"That statute requires a utility to get permission and approval before undertaking the actions described," Judge Ronald Holliger wrote in the opinion. "Apparently believing that it is easier to ask forgiveness than it is to get permission, Aquila chose a different course of action." Judges Thomas Newton and James Madison Stewart Jr. concurred.

In its 2005 decision in StopAquila.org v. Aquila, the appellate court affirmed a ruling from the 17th Judicial Circuit that Aquila didn't have the authority to circumvent the county's zoning requirements before construction. An injunction was issued ordering the plant be dismantled.

But Aquila sought and received the retroactive permits from the PSC, leading to the current legal action.

Butkus said it would cost roughly $40 million to $50 million to relocate the plant.

****************************CORRECTION******************************

The above story listed the wrong name for one of the StopAquila.org opinion authors, Judge James Madison Smart Jr. The Daily Record regrets the error.