Laws amended and bills denied by Idaho lawmakers in recent years are shaping the discussion on energy provider Sempra Generation's proposal to build a coal-fired power plant in Jerome County.
The San Diego-based company announced in April it wants to build a 600-megawatt plant on a site nine miles northeast of the city of Jerome.
Some elected officials and environmental activists are concerned that actions of the Idaho Legislature have weakened the public's ability to influence decisions about whether to approve such facilities.
"We have energy policy by project proposal," said activist and Magic Valley resident Bill Chisholm. "There's a gap in public protection. It's not filled and that's why we're in a vulnerable position now."
Sempra passed the first hurdle in the process when the Jerome County Planning and Zoning Commission earlier this month approved a special-use permit for a meteorological station in the county. The station will gather data on meteorological conditions and monitor existing air pollutants. That data is required for the Idaho Department of Environmental Quality permit necessary for the power plant.
Jerome County officials have sole authority to approve the power plant if Sempra obtains necessary DEQ permits and a transfer of water rights from the Idaho Department of Water Resources.
Although the permitting process with the DEQ is lengthy and includes criteria put forth by the Environmental Protection Agency, detractors say the process is insufficient.
"That leaves a very serious burden on this commission to protect the health, safety and welfare of not only Jerome County residents, but residents of the whole Magic Valley and, in fact, the regional air shed," Chisholm wrote in a letter submitted to the P&Z in May.
Sempra has to apply for a transfer of water rights if it decides to proceed with the power plant's construction.
Company officials said the plant would require 7,600 acre-feet of water per year. As of Friday, June 24, the IDWR had received no information that the company had filed an application for a transfer of water rights, said Allen Merritt, regional manager at IDWR's office in Twin Falls.
In 2003, a debate over the scope of public input regarding water transfers to dairies led to an amendment to Idaho law.
House Bill 284 revised the criteria that IDWR could consider when looking at water transfers. The law will also affect any power company's request for transfer of water rights.
"The general concept (of the law) is it would legally allow for consideration of any aspect related to use of water," said retired Sen. Laird Noh, R-Kimberly, who sponsored the bill.
Detractors of the bill said it would curtail the discussion about water transfers, allowing only for talk of water's economic use and not ancillary issues such as social or environmental effects.
"The public's ability to influence the use of water for the benefit of the community is severely hampered by House Bill 284," said Sen. Clint Stennett, D-Ketchum, who voted against the bill. "It's such an important thing we gave up. Not only did we lose it as a way to protest or direct (water transfers) ... (but) if the community believes the use of water is contrary to the public interest they ought to have a say in it."
Prior to the passage of that law, the public was able to protest the transfer of water if the use of it would have an adverse effect on the community, Stennett said.
"Now, the public is limited, as I believe anyway, to making an argument solely on economic use of water and not the bigger, wider ranging social impact of what that use may do to the community," Stennett said. "The public interest in water transfer is particularly important in this (power plant) issue because the public has less say."
Other lawmakers, however, said the change was necessary because public comment was getting out of control.
Among the law's proponents was Rep. Maxine Bell of Jerome.
"It appeared (public comment) would have been enlarged to the point where people who should not have had interest could have been a player," Bell said. "It was too far-reaching ... giving a say to people who really should not have a say."
Noh said the final language was the result of compromise and that the law could have limited public comment even more.
"The concern was that the case law might have been leading in the direction of all sorts of unrelated issues that could be tied in with getting a water permit," Noh said. "In essence, the (IDWR) director would be put in a position to evaluate such things like air quality that are unrelated to water."
He admits the amendments did damage the public-interest criteria, but that a serious effort was made to keep the public as involved as possible.
Bell left the door open to reconsideration, for that or any legislation.
"We can always revisit that," Bell said. "Things change, then suddenly the law is not sufficient."
In the Legislature's last session, lawmakers also voted to approve House Bill 230, which amends existing law to clarify that certain air quality rules and permit requirements can be no more stringent than the federal government's.
The bill's supporters maintained that not passing the legislation, or something similar, would have caused a significant increase in permitting costs at DEQ.
The three legislators representing District 25, which includes Blaine County, did not support the law. It goes into effect July 1.
Rep. Donna Pence, D-Gooding, said that barring the state from making its own regulations gives the federal government unnecessary authority over local situations.
"It goes back to individual rights and states' rights," she said. "Individuals should have input. If they want to have regulations exceeding those of the federal government, they should be able to. It's hard to get a one-size-fits-all law. What might be good for one part of the country might not be good for another part. We should be able to make the law fit the situation in our area, and this law says we can't."
But Bell stands by her vote in favor of the law, saying federal air quality regulations are sufficient.
"Ours are very strong," she said. "Ours are sufficient enough."
Moreover, she said, any more rules could deter businesses from locating in Idaho, or drive out ones that are already here.
"More authority and more power to police every economic activity in this state, people don't like that," Bell said. "We need to be cautious and careful. You want as an attractive business climate as you can have and still protect the environment."
Stennett, who opposed the bill, said he believes the law is one of the factors that makes Idaho attractive to merchant power plants.
"I believe Sempra is looking at Idaho ... because other states ... have more stringent air quality standards than required by the federal government," he said. "Idaho does not."
In terms of power generation, Idaho is unique in two ways: it is one of two states—the other being Vermont—that doesn't have a coal-fired power plant, and it is one of only a few states that doesn't have a siting law, Stennett said.
He claims that one reason Idaho doesn't have a coal-fired power plant is because such facilities had been previously proposed by utilities, such as Idaho Power, that are regulated by the Idaho Public Utilities Commission. And, in turn, there were more avenues for public participation in the process.
"The people of Idaho came uncorked and said, 'No way, no how,'" he said.
Sempra's proposed facility is a merchant plant, which is not regulated by the Public Utilities Commission.
In the last legislative session, Stennett sponsored a bill that would have established an energy facility site evaluation council to oversee the application process and the siting of new or expanding power generation facilities.
According to the draft legislation, council members would include representatives of various state agencies such as the DEQ, Idaho Fish and Game, Idaho Department of Health and Welfare, Idaho Department of Water Resources, as well as city and county officials where the plant is proposed.
"It allows for expanded local participation in the committee, as well as state agencies, rather than two (out of three) county commissioners ... saying this is a good idea and approving it," Stennett said.
The bill failed to gain enough support during the session and was never printed.
The interim energy committee, however, has taken up the issue of siting legislation during its summer sessions.
"I offered it to the committee," Stennett said. "I want this to become a committee bill and I want the committee to endorse it."
In their next few meetings before the Legislature reconvenes in January, the interim committee could draft a revised version—a version so different from Stennett's original that he might not support it.
Bell was among the legislators who didn't support the initial bill.
"I'm not against it if it's narrowly focused and doesn't come up behind local control," she said.
But taking decision-making out of the sole control of a few local officials is what Stennett and like-minded legislators have in mind.
"Air sheds really don't respect city or county or even regional boundaries," Pence said. "More of a larger cross section of input is needed. The whole Northwest can be affected by these decisions. We have a moral obligation that anything we send any place is good, and we need to keep it good here."
If legislators don't pass a siting bill, a provision in the Idaho Constitution could allow the Legislature or the director of IDWR to deny the water transfer, Noh said.
The provision says that water for power purposes may be regulated by the Legislature.
"The Legislature or the director (of IDWR) would have the ability to limit or deny the water rights for that purpose," Noh said.
In the meantime, most legislators are in agreement that laws need to be reviewed and refined.
"We obviously need a newer energy policy," Bell said.
How that will take shape, though, remains an unknown.