Well, Maybe It Is Like a Murder Trial

Several months ago Federal District Judge J. Phil Gilbert ruled that a proposed pulverized coal plant in Benton, Illinois, did not have a valid clean air permit and needed to demonstrate that it used the latest, cleanest power-generation technologies. (Gilbert ruled in response to a lawsuit brought by the Sierra Club's "Coal Nerve Center.") EnviroPower, which wanted to build the plant using outmoded technology under an expired permit, appealed to the Seventh Circuit Court of Appeals. They appealed even though Gilbert did not rule that they could not build the plant, just that they had to have a valid permit and had to use the best available clean-up technology as required by the Clean Air Act.

Today, EnviroPower announced that Alan Dershowitz, the renowned criminal defense lawyer who defended Claus von Bülow when he was accused of attempting to murder his wife, and who would have been the defense lawyer for O.J. Simpson had he needed to appeal, would be EnviroPower's lawyer in the appeal.

Dershowitz said he was entering the case, which at first blush is a long way from his normal criminal practice, because "the Sierra Club's latest salvo to stop all coal-fired power plants in the Midwest threatens America's energy independence." Dershowitz knows very little about coal -- and sounds like he doesn't know that oil is not used to generate any significant part of our electrical supply, so coal vs. wind has nothing to do with energy independence. Nor is this case, as Dershowitz blustered, about whether "the construction should not have been stopped cold in its tracks because a few members of the Sierra Club unreasonably maintain the view that all coal use in America must be automatically opposed." (We don't, for the record, take that stand.)

Indeed, Dershowitz's announcement came close to saying that if regulatory agencies approve a power plant or other facility, citizens should have no right to appeal, because these matters should best be left to "careful and professional evaluation." It's pretty clear that Dershowitz doesn't feel the same way about the "careful and professional evaluation" that police and public prosecutors apply before they decide to bring a criminal case -- no, Dershowitz has been commendably consistent in his insistence that the accused should have their day in court. What about communities threatened by irresponsible corporations and complaisant regulators?

But at second blush, perhaps Dershowitz is EnviroPower's best bet. As a criminal defense lawyer, he is a master at focusing attention on issues other than the crime -- and perhaps building an irresponsibly outmoded coal-fired power plant in 2001 is, morally speaking, a crime -- maybe even a homicide.

After all, about the time that Dershowitz was signing his retainer, a new study commissioned by the same Environmental Protection Agency that had approved the Benton plant found mercury contamination in every single one of 2,700 fish sampled from 626 rivers and streams flowing over 190,000 miles in the West. Since poorly controlled coal-fired power plants are the single largest source of mercury in this country, and since mercury is a potentially lethal neurotoxin, EnviroPower may indeed need one of the nation's best criminal defense lawyers to plead its case.

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