In the Matter of Mohave Electric Cooperative's Application
On September 4, 2012, the Center filed a lawsuit challenging the Arizona Corporation Commission's decision to undermined its own renewable energy rules by once again voting to allow a proposed waste incinerator to qualify as "renewable energy." In a 3-2 vote with Republican commissioners in the majority, a waste incinerator that would run partially on fossil fuels and spew toxic by-products such as mercury and dioxin was astonishingly placed in the same category as truly clean renewable energy such as solar and wind.
This case began in November 2010 when Mohave Electric Cooperative, an electric utility servicing northwestern Arizona, filed an application with the Arizona Corporation Commission seeking approval of a waste incinerator as renewable energy so that it would count toward the mandatory renewable energy credits all utilities in Arizona must have by 2025 under the Commission's rules. The application stated that the waste incinerator was to be constructed and operated by a company called Reclamation Power Group, which has never built or operated a waste-to-energy facility. Interestingly, Reclamation Power Group LLC was formed in 2008 by Gary Rogers of Peoria and Ron Blendu of Idaho, brother of former state Senetor Robert Blendu, R-Litchfield Park.
The Center, on behalf of the Sierra Club's Grand Canyon Chapter, intervened in Mohave Electric's application to raise two glaring problems with Mohave Electric's request: 1) a waste incinerator is not renewable energy because it requires fossil fuels to generate energy, and 2) a waste incinerator is not clean energy because it produces toxic by-products like mercury and dioxin that, among other things, are proven causes of birth defects and neurological problems in children. Creating these types of hazardous air pollutants in Maricopa County, where the plant is proposed to be built, is especially ridiculous given that Maricopa County already runs afoul of Clean Air Act requirements.
Despite the numerous and convincing reasons to deny Mohave Electric's application, on July 25, 2011, the Republican memebers of the Commission decided to eviscerate the Commission's own Renewable Energy Standards by allowing the waste incinerator to be categorized as renewable energy. In response, the Sierra Club's Chapter Director, Sandy Bahr, stated, " [w]aste incinerators were specficially rejected when the [Commissions] Renewable Energy Standard was established because of the negative environmental impacts and the fact that waste can include hazardous materials, tires, and other nonrenewable resources. This waiver sets a very bad precedent as well as undermines the purpose of the Standard, which was to promote clean renewable energy such as solar and wind."
On August 12, 2011, the Center filed an application for rehearing, which the Commission granted on August 24, 2011. The rehearing was conducted on November 28, 29 and 30, and December 1, 2011. After the rehearing, the Commission issued a 3-2 decision once again approving the project, which was entered on June 26, 2012. Commissioner Sandra Kennedy filed a dissenting opinion. On September 4, 2012, the Center, on behalf of the Sierra Club, filed a complaint challenging the decision in Superior Court.
On July 17, 2013, Judge McClennen agreed with the Center and held that the Commission "erred and abused its discretion" in granting Mhave Electric Cooperative renewable energy credit for the proposed waste incinerator. However, in July 2015, the Arizona Court of Appeals reversed the Superior Court and held that under the deferential standard applicable to ACC decisions, the superior court should have affirmed the decision. On February 10, 2016, the Arizona Supreme Court declined to review the case.