January 20, 2010

By Anton Caputo
San Antonio Express-News

A federal court judge Wednesday ordered a stop to all activity in the $32 billion nuclear lawsuit while he decides if the case belongs under federal jurisdiction.

Judge Xavier Rodriguez of the U.S. District Court for the Western District of Texas is expected to rule today on whether a citizens group that is trying to intervene has standing to get the case moved to federal court.

Until then, the opponents in the suit – CPS Energy and NRG Energy – have had to halt depositions they were conducting for a trial that was set to start Monday in state court.

The citizens group, the Ratepayer Protection Coalition, argues CPS has violated the coalition’s constitutional rights, which would make this a federal case.

The constitutional violation, the coalition argues, stems from CPS not being honest with the public during its presentations on the project, which "denied their First Amendment right to have an informed dialogue and a decision by their elected representatives."

"I believe the taxpayer needs to be granted some kind of representation in this case because they are not getting that from CPS," said coalition attorney Karen Seal.

This is the second attempt to move the case to federal court; Toshiba Inc., which was a party to the suit, tried last week.

That prompted CPS to drop the Japanese company from the lawsuit over the weekend. CPS attorneys said hearing the case in federal court could cause substantial delays.

CPS attorney Michael Moore said he expected the case to be remanded to state court, with the trial beginning on schedule.

"CPS Energy continues to believe that it is in its customers’ best interests for the case to be heard in a Texas state court on a quick timeline," said CPS General Counsel Carolyn Shellman.

The suit stems from the proposed multibillion-dollar expansion of the nuclear South Texas Project. CPS is partnering with Nuclear Innovation North America – which is a partnership between NRG and Toshiba – on the project.

CPS is asking a court to clarify its rights should it decide to pull out of the deal. It is also suing NRG and NINA for at least $32 billion, charging them with making false claims to lure CPS into the project and then distributing bogus information in the media to push it out.

NRG and NINA deny the allegations.