Board rejects carbon-dioxide regulations

By MIKE DENNISON - IR State Bureau - 01/12/08

Despite some impassioned words about the need to address global warming, a state board Friday declined to impose new carbon-dioxide regulations on a coal-fired power plant proposed near Great Falls.

On a 5-1 vote, the state Board of Environmental Review said state regulators acted properly when they approved an air-quality permit without carbon-dioxide limits for the Highwood Generating Station.

The board is a quasi-judicial panel that reviews decision by the state's Department of Environmental Quality and sets Montana environmental rules.

A group of rural electric cooperatives and the city of Great Falls are proposing to build the 250-megawatt, $720 million plant, to provide power to at least 60,000 people in central and southern Montana.

The board's action rejected a request by the Montana Environmental Information Center, which said emissions of carbon-dioxide, or CO2, is "subject to regulation" because of its role in global warming and likely future regulation.

CO2 emissions, created by burning coal and other fossil fuels, are considered the primary cause of global climate change.

Board members said they may have the authority to create new CO2 regulations for the state, but that the law doesn't allow the state to impose them retroactively on this plant at this time.

Yet board members, who are appointed by the governor, made it clear they expect CO2 to be regulated in the future, and that they might play a role in forming those regulations.

"I think we're all burying our heads in the sand if we don't think CO2 is going to be regulated in the future," said Robin Shropshire, a board member from Helena.

"I bet there is going to be some great, new technology in the next 10 years (to capture CO2), but we can't require (this plant) to do that (now)," said Joe Russell, a public health official from Kalispell and chairman of the board. "And that's too bad."

Anne Hedges, program director for the Montana Environmental Information Center, called the board's decision "disappointing" and said her group expects to appeal the decision in court.

"The board followed the path of the Bush administration in deciding to delay action on the most important issue of our time," she said. "This is an issue of critical importance nationwide, and we are prepared to take it all the way to the Supreme Court."

Tim Gregori, general manager of Southern Montana Electric, the co-op developing the plant, said afterwards that the board made a sound decision that will hold up in court.

Gregori also repeated the co-op's commitment to investigate technology that may capture some of the plant's CO2 emissions. The co-op said it will file documents with the board outlining those plans.

"That will validate that we're looking at (CO2 emissions) responsibly and genuinely to get a solution that is technically feasible," he said. "We are not certain (a solution) exists, but we want to look at this thoroughly."

While the board ruled in favor of the plant, it still has some hurdles to clear before it can be built.

Another hearing is scheduled before the Board of Environmental Review later this month on whether the air-quality permit properly regulates "fine particulate matter" that would be emitted by the plant.

Developers also said they're still working on plant financing. Gregori said he hopes financing for the plant can be in place by mid-year. Developers hope construction can be completed by 2012.

In challenging the lack of CO2 regulations in the permit, the Montana Environmental Information Center said CO2 emissions should be "subject to regulation" because court rulings have given federal regulators the power to declare CO2 a pollutant that needs to be regulated.

The state could wait for Congress or federal regulators to act, but has the authority itself to force the regulations, said Abigail Dillen, an attorney for EarthJustice in Bozeman.

"With something as important as global warming, it's just unacceptable to say we can just let this one, last plant under the wire, and look at it later," she said.

But Ken Reich, a Boston lawyer representing the plant developers, said without an established standard for CO2, the emissions are not "subject to regulation."

" 'Subject to regulation' doesn't mean, as the (opponents of the plant) seem to want it to mean, 'Could be regulated,' " Reich said. "It has to mean a pollutant for which there is some emission limit, some standard."