Georgia State Judge Rejects Coal Power Plant, Citing CO2 Emission Issues

Georgia State Judge Rejects Coal Power Plant, Citing CO2 Emission Issues

July 1, 2008 17:26

A Georgia Court Monday reversed that state’s issuance of an air permit to the developer of a 1,200 MW coal fired power plant, citing the permit’s failure to require carbon dioxide emission limitations under the Clean Air Act (“CAA”). An administrative law judge’s decision to issue the permit was reversed and remanded for further proceedings.

At issue in the case is a proposal for a conventional coal burning steam electric power plant that would be a major air pollution source, emitting 8-9 million tons of carbon dioxide per year, along with sulfur oxides, nitrogen oxides, particular matter, sulfuric acid mist, and hazardous air pollutants, including mercury.

The ruling is significant because it is believed to be the first application of the U.S. Supreme Court’s April, 2007 decision in Massachusetts v. EPA, which involved greenhouse gas emissions from new automobile exhaust, to major stationary sources of emissions from power plants. In the Mass. v. EPA case, the Court said that “EPA can avoid regulating GHGs only if it determines that GHGs do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.” 127 S. Ct. at 1462.  EPA recently signaled its intention to delay such action. [See June 28, 2008 blog posting on that issue.]

Fulton County Superior Court Judge Thelma Moore’s ruling rejected the argument of the project’s developer, Longleaf Energy Associates, LLC (a joint venture of Dynegy and LS Power), that carbon dioxide is not an “air pollutant subject to regulation” under the CAA.  If it is such an air pollutant, the CAA requires a best available control technology (“BACT”) emission limit in places, such as the Early County, GA site, which are “attainment” zones.

In setting the stage for her ruling, Judge Moore noted that “it is undisputed that no BACT analysis was done. There was no effort to identify, evaluate, or apply available technologies that would control [carbon dioxide] emissions, and the permit contains no [carbon dioxide] emissions.” 

“The argument had been advanced before the permit issued here that [carbon dioxide] was not an “air pollutant” under the Act, but that argument was rejected by the U.S. Supreme Court in Mass. v. EPA,” 127 S.Ct. 1438 (2007), Judge Moore wrote. “There is no question that [carbon dioxide] is subject to regulation under the Act.”

Longleaf argued in the case that carbon dioxide is not regulated under the CAA because the EPA has not yet promulgated a national ambient air quality standard for carbon dioxide, has not listed it as a regulated pollutant under any section of the CAA, and has not established any other regulations for carbon dioxide.  Judge Moore rejected that argument, however, holding that since carbon dioxide is “otherwise subject to regulation under the Act,” a Prevention of Significant Deterioration (PSD) permit cannot issue for Longleaf without carbon dioxide emission limitations based on a BACT analysis.

The Georgia Court also found that the permit-issuing administrative law judge should have considered the integrated gasification combined cycle (IGCC) technology as a possible BACT alternative technology to the conventional coal burning technology proposed by Longleaf.  

The case represents yet another setback for conventional coal-fired power generation technology. Last year, a Texas-based major energy company agreed to scuttle plans to build eight of 11 coal fired power plants as part of an agreement with environmental groups that cleared the way for a private equity merger transaction.  More recently, a proponent of coal-fired generation in Kansas ran into serious difficulties in that state.

Developments in the states continue to show that, while the EPA has yet to issue a regulatory response to the Mass. v. EPA landmark Supreme Court ruling, its legal rationale, which was limited to new automobile exhaust, is now being applied in state permitting and court decisions to major stationary sources, such as power plants.

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