July 1, 2008

Highwood plant foes slap DEQ with lawsuit

By KARL PUCKETT
Tribune Staff Writer

Two environmental groups on Monday sued the Montana Department of Environmental Quality, alleging the state has failed to limit greenhouse gas emissions in an air permit for a coal-fired power plant planned east of Great Falls.

In a ruling in a separate case involving carbon controls, which also was filed Monday, a judge in Fulton County Superior Court in Georgia ruled that carbon was a pollutant that's subject to regulation (Story on 3A).

Jenny Harbine, an attorney for the Bozeman office of Earthjustice, a national not-for-profit law firm specializing in environmental litigation, said the Georgia case is relevant in Montana.

Earthjustice is representing the Helena-based Montana Environmental Information Center and Citizens for Clean Energy of Great Falls, the groups that filed the Montana lawsuit in Cascade County District Court against the DEQ.

"What we have now with this Georgia case is precedent," she said.

In May, the Montana Board of Environmental Review rejected the same argument laid out in Monday's lawsuit, which is that carbon dioxide, like other pollutants, is subject to a "best available control technology" (BACT) study to limit CO2 emissions under state and federal air-quality laws.

"The department still holds it's not," said David Rusoff, a DEQ attorney.

The lawsuit asks the court to invalidate the air-quality permit for Highwood and require a BACT analysis. It seeks an injunction prohibiting construction until a new air-quality permit is in place with specific CO2 limits.

The state Constitution requires the DEQ to curb greenhouse gas emissions because it provides the "right to a clean and healthful environment," the lawsuit says.

"We need to try to slow, stop and reverse global warming, and this is a step in that direction," said Jim Jensen, executive director of the Montana Environmental Information Center (MEIC).

An estimated 2.1 million metric tons of CO2 would be emitted at Highwood. By comparison, 37 million metric tons of C02 was emitted statewide in 2005, the latest figures available.

Electricity-producing facilities fired by coal, natural gas and oil accounted for most of the emissions, according to the state's greenhouse gas inventory.

The $790 million plant, if constructed, would generate 250 megawatts of electricity for members of four rural electric cooperatives and possibly commercial customers in Great Falls.

It's being developed by Southern Montana Electric Generation and Transmission.

"Projects like this always engender lawsuits," SME's Boston-based attorney Ken Reich said. "But anyone can file a lawsuit."

It was the fifth lawsuit the proposed Highwood Generating Station has elicited from opponents in the past year and a half, but the first time the state has been a target.

Reich said the Board of Environmental Review correctly ruled in its May decision that CO2 is not regulated under the state or federal clean air acts.

SME's boiler manufacturer is at the forefront of developing technology to capture carbon before it's emitted into the atmosphere, Reich said.

SME hopes the Highwood plant would become a pilot site where the technology could be tested, he said.

"The issue is trying to demonstrate capture that's reasonably priced and feasible," he said.

Whether CO2 is considered a regulated pollutant and thus subject to the same emission-control analysis as other pollutants, such as fine particles, is the crux of both the Montana and Georgia cases.

Monitoring and reporting requirements for CO2 emissions are in place across the nation.

Earthjustice's Harbin says that clearly shows the EPA considers it a regulated pollutant but that the agency is unwilling to be proactive in its emissions regulations, leaving states to step forward.

"Under the DEQ's position, they would sit and wait for the federal Environmental Protection Agency to affirmatively do something about CO2," she said.

The Georgia decision stemmed from a challenge to a 1,200-megawatt coal-fired power plant in Early County.

In that case, the judge on Monday ruled the argument that CO2 was not an air pollutant under the Clean Air Act had been rejected by the U.S. Supreme Court in a case involving automobile emissions called Massachusetts vs. EPA.