WACO -- On the eve of hearings on six of the 11 coal-burning power plants that TXU wants to build in a hurry across the state, a judge in Austin ruled that Governor Rick Perry never had the authority to fast-track permits for the new plants in the first place.
It is unclear whether Goliath will stay dead. But at a rally of nearly 1,000 opponents of the TXU plan at the Waco Convention Center Tuesday night, a local rancher who filed the lawsuit that led to the temporary injunction got a long standing ovation.
"Here we are, a little old group from Riesel, Texas, and we sued the Governor and won,'' said the rancher, Robert Cervenka. If the new plants were built, "I'd have four right around my house.'' They would also double CO2 emissions in Texas, which already emits more of the greenhouse gas than any other state in the country.
"I feel like a pyromaniac who lit the spark that started the blaze,'' Cervenka exulted, and pulled a copy of the late afternoon ruling by District Court Judge Stephen Yelenosky from his coat pocket.
Almost immediately after it was issued, though, the Republican Governor's spokesman suggested that "a single liberal Austin judge'' was not the ultimate arbiter in the case. Both TXU and their opponents still plan to show up for the scheduled hearing on the permits in Austin on Wednesday.
For once, the little guy is definitely bringing the bigger guns: Houston lawyer Steve Susman - named by Who's Who Legal as the leading commercial litigator in the world last year - is representing TXU's opponents pro-bono. He said that's because "I do believe the greatest threat to mankind, not just for our grandchildren but for us, is climate change.''
He previewed his opening argument in Waco, where farmers and business people, Republicans and Democrats, seniors and students - a few of whom were dressed as trees, and waving a sign that said "Perry is a Fairy'' -- came out to protest what they see as TXU's race to build plants with the oldest, dirtiest available technology before the new Democratic Congress can pass legislation aimed at curbing greenhouse gas emissions.
Many in the crowd wore T-shirts that said, "Face it: Coal is filthy.'' They mentioned a slew of worries - mostly health concerns - and said mercury emissions and acid rain cannot be good for fish, livestock or the local economy, either. Cities that cannot comply with federal clean air standards not only have trouble attracting new development but stand to lose millions in federal funds.
"I'm a Republican, but the reason I don't want the coal plants is I live here,'' said Zach Crohn, a college sophomore. "Baylor is very Southern Baptist conservative Republican, but this will affect all of us, no matter what you believe in politics. It would be a different story if it was a different area.''
Perry's opponents often point out that his decision to fast-track the permits in 2005 closely followed a TXU donation to his re-election campaign, while allies argue that after Hurricane Katrina temporarily knocked out natural gas production in the Gulf, Perry was understandably concerned about relying on natural gas.
Tom "Smitty'' Smith, the Texas state director of Public Citizen, who was also at the meeting in Waco, scoffed at the corruption allegations: "For $173,000? You wouldn't do that.'' But whatever the motivation, he said, Perry "has got coal all over his face.''
Susman said that after maintaining all along that the new plants were urgently needed to keep Texas from running short of electricity, he had just been notified that TXU now plans to argue in court that need is irrelevant. Given the chance, he said, "We intend to prove that the idea of building these 11 plants in one year had nothing to do with providing affordable electricity. It was all about locking competitors out.''
TXU also plans to argue that CO2 emissions cannot even be considered by the court, he said, because carbon dioxide is not currently regulated under federal law. The Supreme Court is expected to rule on that issue in the coming months.
Not only are the plants cheaper to build using older technology, but when new laws are passed, they will probably include a cap-and-trade system under which TXU could actually benefit financially from having higher emissions before the cap is put in place. "The more carbon dioxide they're putting in the atmosphere, the more credit they'll get,'' Susman said. "It's about accumulated carbon credits.''
Senator John Kerry of Massachusetts has said he plans to propose legislation specifically aimed at blocking the TXU plan. And even some GOP officials here tonight suggested they'd take help wherever they could get it. "It's great to see the cavalry,'' said Doc Anderson, a Republican state legislator who supports the governor, but not the TXU plan. "I was just hoping science would come in'' to the equation at some point, he said, and made the sign of the cross.
Dallas Mayor Laura Miller, who organized the coalition of 36 Texas cities, counties and school districts to oppose the TXU plan, walked the crowd through an independent air modeling study that, as expected, illustrates how hard it would be for TXU to make good on its promise to simultaneously build 11 new plants and reduce overall emissions by 20 percent. In depositions released by the opposition, TXU officials have said they are still looking into how this might be accomplished.