« Ind. Decisions - Transfer list for week ending July 3, 2008 | Main | Courts - Judges urges Lilly to try to settle Zyprexa drug claims »

Friday, July 04, 2008

Environment - "Georgia Court Halts Construction of New Coal-Fired Plant"

The subhead to this July 3rd story in Scientific American is: "First-ever thumbs-down by a court based on greenhouse gas as a pollutant." The report begins:

A Georgia court this week halted construction of a new 1,200-megawatt coal-fired power plant on the Chattahoochee River, dubbed Longleaf, because backers failed to provide a plan to limit climate change–causing carbon dioxide emissions from it.

"The plant as permitted [by the Georgia Department of Natural Resources] would annually emit large amounts of air pollutants, including eight [million] to nine million tons of carbon dioxide," Fulton County Superior Court Judge Thelma Wyatt Cummings Moore wrote in her decision. "There was no effort to identify, evaluate or apply available technologies that would control CO2 emissions and the permit contains no CO2 emission limits…. Since CO2 is 'otherwise subject to regulation under the [Clean Air] Act,' a PSD [prevention of significant deterioration] permit cannot issue for Longleaf without CO2 emission limitations."

The decision marks the first time that potential greenhouse gas pollution has been cited as a factor in denying permission to build a new coal-fired power plant; it is also the first that hinges on a Supreme Court ruling issued last year that found the Clean Air Act gives the U.S. Environmental Protection Agency (EPA) the power to regulate carbon dioxide and other greenhouse gas emissions.

Matthew L. Wald reported July 1st in the NY Times:
A judge in Georgia has thrown out an air pollution permit for a new coal-fired power plant because the permit did not set limits on carbon dioxide emissions.

Both opponents of coal use and the company that wants to build the plant said it was the first time a court decision had linked carbon dioxide to an air pollution permit.

The decision’s broader legal impact was not clear, either for the plant, proposed to be built near Blakely, in Early County, Ga., or for others outside Georgia, but it signaled that builders of coal plants would face continued difficulties in the court system as well as with elected officials in many states.

In the ruling released late Monday afternoon, a state judge relied on a decision by the Supreme Court last year that carbon dioxide could be regulated as a pollutant. Carbon dioxide, which is colorless, odorless and not directly harmful to animals or plants, is not now regulated, and the Bush administration has signaled that it would not issue such regulations before the president leaves office.

But the judge, Thelma Wyatt Cummings Moore in Superior Court in Fulton County, Ga., said that federal air pollution control laws required pollution permits to cover all pollutants that could be regulated under the Clean Air Act, not just those for which there is “a separate, general numerical limitation.” The case had been brought by the Sierra Club and a local environmental group, Friends of the Chattahoochee.

Judge Moore sent the case back to the Georgia Department of Natural Resources, which had issued a permit in May 2007. The builders had planned to break ground on the $2 billion project later this year.

A Reuters analysis piece by Eileen O'Grady and Timothy Gardner, from July 1, begins:
HOUSTON, July 1 (Reuters) - Developers of coal-fired power plants in the U.S. will face yet more obstacles since a Georgia court overturned an air permit for a new coal plant, saying the plant needed to limit emissions of carbon dioxide, a greenhouse gas blamed for global warming.

Environmental groups predicted Monday's ruling would discourage investment in coal plants while supporters of the fuel said the ruling was unlikely to be seen as a legal precedent in other states.

While the legal importance of the Georgia decision remained cloudy, financial community reaction may be more visible, said Matt Preston, principal analyst with Hill & Associates, a Wood Mackenzie company focused on coal.

"This adds to the uncertainty as if that was needed," Preston said. "Until there is a more clear path for coal projects with regard to climate change, it will be more difficult to raise money for coal projects."

The only point observers agreed on was that Monday's court ruling was "unprecedented" in scope as it relates to the need for coal plants to regulate carbon emissions now.

Here, via Green-law.org, is a copy of the 20-page, June 30th opinion.

Posted by Marcia Oddi on July 4, 2008 08:24 AM
Posted to Environment