Can Balch become Good, Sensible, and Ethical?

Although we, the CDLU, are not environmentalists, conservationists, or preservationist, we do believe in common sense and respecting the community.

With the serious allegations of suppressing the African-American community in North Birmingham from having their toxic and contaminated property tested; wrongly targeting a competitor and father of four young children in an alleged criminal conspiracy;  being linked to an alleged scheme to buy white-only property for a limestone quarry in Vincent, Alabama; Balch and Bingham is now involved in another controversial wrangling.

According to a report in the Courthouse News Service, Balch represents Luminate’s Martin Lake Power Plant (pictured above) in Rusk County, Texas, writing, “The coal-fired electric generating plant in Tatum, southwest of Marshall, has been operating without permits and without the Best Available Control Technology to limit emissions of sulfur dioxide and nitrogen oxides for more than a decade.”

Calling it “one of the nation’s dirtiest sources of power,” Courthouse details the legal fight  between the U.S. government and the Sierra Club against Luminate:.

A[t] issue was whether Luminant should have to apply for the required permits and slash its emissions. The United States and the Sierra Club are both appellants here, against Luminant Generation Co.

U.S. District Judge James E. Kinkeade in Dallas denied their request for an injunction, saying that since the pollution has been continuous since 2006, the statute of limitations has expired and nothing can be done.

Senior Fifth Circuit Judge E. Grady Jolly seemed perplexed by that argument….“I’m asking, do they get to pollute the air all they want? You’re telling me that these facilities continue to pollute, and there just isn’t anything you can do about it?”

Robert Lundman, representing the federal government, replied: “Any place grandfathered in gets to pollute and pollute until they upgrade; then they have to follow standards.”

In this case, Lundman said, Luminant purposely did not apply for the proper permits after upgrading. “Their argument is: ‘Hey, hey, we didn’t apply for a permit, so you can’t get us,’” Lundman said. A permit, he said, would have required Luminant reduce pollution by 90 percent, “but they didn’t apply for one.”

P. Stephen Gidiere III of Balch & Bingham represents Luminant and articulated an interesting defense according to Courthouse News:

The U.S. Environmental Protection Agency need not take the case to court, Gidiere said. Permits come up for review every five years, and should be considered then.

“But there must be some advantage to [the United States and the Sierra Club] doing it this way?” [Judge]Jolly asked.

Yes, there is, Gidiere said. “They are seeking back-penalties worth hundreds of millions of dollars….Most of the modifications occurred before the company became Luminant.” The plant at issue has been operating since 1977.

Gidiere asked the judges: “We would like for you to hold up that there is no injunctive relief available for a past violation.”

Gidiere once whooped the Sierra Club and instead of resolving the matter in East Texas, the Sierra Club appears to be wanting to bankrupt the plant.  According to his bio, Gidiere won a “$6.4 million attorney fee award against Sierra Club.”

Even if Gidiere wins this appeal, Balch looks like it is condoning rampant pollution from a plant that appears to have intentionally skirted the permit process.

Common sense and concern for the community needs to come into play. The EPA can immediately resolve the matter by offering to accept necessary permits without any back-penalties while Luminate vows to upgrade the plant to cut pollution by 90 percent in the next year.

Balch needs to stop defending the indefensible, garnering bad publicity, expanding a bad reputation, and instead offer an approach that is good to the community, sensible to the firm and its clients,  and adheres to highest ethical standards.

This includes resolving the Newsome Conspiracy Case and apologizing to the African-American community in North Birmingham.