Susman Godfrey Persuades Judges to Recommend Denial of Las Brisas Permit

March 2010

Dallas, Texas — Two judges recommended on Monday that the Texas Commission on Environmental Quality (TCEQ) should deny or remand a draft permit for the Las Brisas Energy Center (LBEC), a petroleum coke-fired power plant proposed in Corpus Christi, Texas.

Susman Godfrey L.L.P. attorneys Terry Oxford, Brian Melton, and Drew Hansen represented the Texas Clean Air Cities Coalition, a group of over 30 Texas cities that joined together to oppose the proposed plant, in a two-week trial in November 2009. “We are delighted with the judges’ recommendation,” said Coalition chair Linda Koop of the Dallas City Council. “This is a major step along the road to protecting the air quality for the cities in our coalition.”

In a 120-page proposal for decision, the judges concluded that LBEC had failed to demonstrate that it would comply with the Texas and federal Clean Air Acts. The judges particularly criticized the air modeling LBEC submitted to support the plant. The judges stated that the air modeling was “unreliable” and commented on the “surprising extent of mistakes in LBEC’s initial modeling.” Upon cross-examination by Susman Godfrey attorney Drew Hansen, LBEC’s air modeler admitted that, even as of the last day of trial, he could “not say with certainty that any of the modeling that [he] testified about in connection with [the trial] was 100 percent accurate.”

Susman Godfrey attorney Terry Oxford elicited testimony from the State’s lead engineer that “it was hard to defend” the mercury emissions that LBEC had requested, and Susman Godfrey’s Brian Melton, in cross-examination of the TCEQ’s toxicologist, established that TCEQ’s toxicology review was cursory and rushed.

Several other parties joined the Cities Coalition in opposing the plant, including the Sierra Club, the Environmental Defense Fund, and a group of local doctors representing the Nueces County and San Patricio Aransas Refugio Medical Societies, the two physicians’ organizations nearest the proposed plant. The Las Brisas trial was the subject of considerable public attention in Corpus Christi, with numerous members of the public who opposed the plant attending proceedings each day and daily coverage by the Corpus Christi Caller Times, which featured articles highlighting cross-examinations by each of the three Susman Godfrey attorneys at trial.

The permit now goes before the TCEQ commissioners, who will decide whether to follow the judges’ recommendation. A final decision by the TCEQ is expected in several months.