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Friday, August 10, 2007

Environment - Pollution and justice: Kentucky judge orders state to rehear permit for coal-fired power plant

After all the stories about the proposed BP and U.S. Steel permits in NW Indiana and the outrage that has ensued, here is a very strong editorial this morning in the Evansville Courier & Press about a power plant permit in Kentucky. Although the permit process is different, the facts echo many of the same themes as the NW Indiana situation. In this case, however, the pollution would originate in Kentucky and Indiana would be impacted:

A Kentucky judge drew a line in the sand this week when he ordered state officials to redo their approval process for a coal-fired power plant. The case illustrates the importance of having an independent judiciary when the executive branch — in this case, the Kentucky Environmental and Public Protection Cabinet — tried to push through a permit that would have benefited a powerful industry.

Peabody Energy Corp. plans to build a 1,500-megawatt power plant near Central City, Ky., that would generate electricity using high-sulfur Kentucky coal from a nearby mine. In the past, officials have said the $2.5 billion Thoroughbred plant would create 450 mining and power-plant jobs in and around Muhlenberg County, Ky.

Job creation is laudable; but the concern on this side of the Ohio River is that the Thoroughbred plant, with its sulfur-dioxide and ozone emissions, could add to Southwest Indiana's air-quality problems. Vanderburgh and Warrick counties struggle to stay off the federal ozone violations list, and both still are in "nonattainment" for fine-particulate matter, or soot.

Because of emissions the Thoroughbred plant would produce, a Kentucky administrative hearing officer, Janet Thompson, heard weeks of testimony and reviewed 370 pages of documents in 2005 in considering whether the state should grant Peabody an air-pollution permit. Thompson recommended the state instead give further review to the permit request.

But that recommendation was rejected by Kentucky's environmental secretary at the time, LaJuana Wilcher. She decided to allow Peabody to build the plant without revisiting its permit, although she recommended tightening mercury-emissions limits.

Two environmental groups, the Sierra Club and Evansville-based Valley Watch, opposed the permit and sued the state to block it.

The Franklin County, Ky., circuit court judge who heard the case, Thomas D. Wingate, this week ruled in favor of the environmental groups and against the state. Wingate ordered the Peabody case sent back to the Environmental Cabinet to redo the air-pollution permit procedure.

Using unusually pointed language, Judge Wingate found that Wilcher had misstated both the facts of the case and Kentucky law in issuing the permit. Indeed, in reading the judge's ruling, it appears Kentucky officials tried to bend the rules to remove hurdles for Peabody while at the same time putting obstacles in the opponents' path.

The judge's ruling chided the environmental secretary on several points, including the push to use local high-sulfur coal instead of low-sulfur coal, the impact of emissions on Mammoth Cave National Park and nearby vegetation, and the lack of proper public notice.

Whether Kentucky restarts the permit process or appeals Wingate's ruling remains to be seen.

The point is, one county judge stood in front of the political freight train of the state government and a powerful industry and told them, in effect, "This far and no farther." Kentucky state laws and regulations will be followed, not disregarded as inconvenient, the judge essentially was saying in his 11-page ruling.

That's refreshing. It reflects one of the oldest traditions in American jurisprudence: that no matter how powerful or influential the litigant, all should be considered equal before the law.

Posted by Marcia Oddi on August 10, 2007 08:21 AM
Posted to Environment