Business and Economics

Judge Won’t Step Down On Coal Gasification Case

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August 15, 2013 —

INDIANAPOLIS – Indiana Supreme Court Justice Mark Massa will participate in oral arguments in a case involving the proposed $2.8 billion coal-to-natural-gas plant proposed for Rockport despite a request that he recuse himself or be disqualified from the hearing.

The Sierra Club, Citizens Action Coalition, Spencer County Citizens for Quality of Life and Valley Watch filed the request with the court Wednesday morning.

The four environmental groups cited Massa’s personal friendship with Mark Lubbers, the Indiana project director for the group seeking to build the plant, and his work as general counsel for former Gov. Mitch Daniels, who was a strong supporter of the plant, as proof of a conflict of interest.

Massa addressed the groups’ arguments in his denial of their request Wednesday afternoon.

Massa said though he and Lubbers have known each other for 28 years and are friends, they do not regularly socialize and they have never discussed the Rockport case.

He said while he worked for Daniels at the time the deal was struck, he “had no involvement in the negotiation of the contract between the Indiana Finance Authority and Indiana Gasification” and has “no independent recollection” of reviewing the enabling legislation for constitutionality.

Jodi Perras, director of the Sierra Club’s Beyond Coal campaign in Indiana, said her organization is “disappointed in Justice Massa’s decision not to recuse himself from this case, and the haste with which he issued his written decision.”

At issue is whether the contract should stand. The Indiana Utility Regulatory Commission approved the contract and the Indiana Court of Appeals ordered a change that could mean the plant won’t go forward.

Had Massa recused himself, the case would have gone before four judges instead of five.

If the appellants, including the environmental groups, had then been able to split the Supreme Court’s decision, the ruling of the Appeals Court would stand. That would mean the plant project likely would not go through.

Massa said the groups “can do the appellate math and know that in the event of my recusal, they would only have to convince two judges to prevail, leaving the court split and winning the tie.”

But Perras said that is not why the groups filed the request.

“We’re concerned about the integrity of the court,” she said, “not whether there’s a tie court or not.”


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