November 14, 2008
Ruling could spell trouble for coal plants By KARL PUCKETT Tribune Staff Writer
In a decision environmentalists said could carry implications for proposed coal-fired facilities nationwide Ñ including the Highwood Generating Station planned east of Great Falls Ñ an appeals panel ruled Thursday that the Environmental Protection Agency failed to consider carbon dioxide emissions controls at a proposed coal-fired power plant in Utah.
"I think it will force greenhouse-gas emitters to bear down and consider ways to reduce their emissions and address global warming," said Abigail Dillen, an attorney for Earthjustice, of the decision.
Earthjustice is representing the Helena-based Montana Environmental Information Center and Great Falls-based Citizens for Clean Energy, which are suing the state Department of Environmental Quality, demanding carbon dioxide controls at the Highwood plant, which is under construction eight miles east of Great Falls.
"They're not saying the Clean Air Act means you have to regulate CO2," said Ken Reich, attorney for Southern Montana Generation & Transmission Cooperative, the Highwood power plant's developer. He added the ruling doesn't go as far as MEIC and CCE claim.
EPA Region 8, headquartered in Denver, issued a permit to Deseret Power Electric Co-op in 2007 to construct a coal-fired unit at Deseret's existing Bonanza Power Plant near Bonanza, Utah.
The Sierra Club appealed to the EPA's Environmental Appeals Board, saying the permit violated the federal Clean Air Act by not requiring the "best available control technology" to limit carbon dioxide emissions. CO2 is a suspected contributor to climate change.
In its decision, the appeals board remanded the permit back to the EPA, saying the regional office must look into whether the Clean Air Act requires CO2 emissions limits. The judges also said the issue was bigger than the Utah plant.
"The Region should consider whether interested persons, as well as the Agency, would be better served by the Agency addressing the interpretation of the phrase 'subject to regulation under this Act' in the context of an action of nationwide scope, rather than through this specific permitting proceeding," the three-judge panel wrote.
The case involves the same issues argued in December in Montana before the Board of Environmental Review involving the 250-megawatt Highwood Generating Station.
CCE and MEIC appealed the air-quality permit issued to SME by the DEQ, arguing that the state agency erred in not requiring carbon controls for the power plant.
"Now we have confirmation on what EPA policy is," Dillen said. "Ultimately, what this body has found is EPA has the authority to require best available control technology for CO2."
The Montana Board of Environmental Review rejected that argument in a January decision, prompting the two environmental groups to sue the DEQ in Cascade County District Court. That case remains unsettled, but Dillen said the Utah decision would bolster the local case.
In its ruling, the Environmental Appeals Board wrote that "we do not conclude that the Clean Air Act requires the Region to impose a CO2 BACT limit" but also added that "the record does not support" the EPA's reason for not imposing a CO2 limit.
DEQ attorney David Rusoff said Thursday he had not read the decision and couldn't comment.
"Any decision, either way, in this case is certainly of interest to the department," he said.
The decision potentially could impact coal-fired power plant projects across the country, including in Georgia, Wyoming and Kansas, as well as in Montana, especially under the new Barack Obama administration, which has signaled a willingness to make CO2 emissions subject to limits, Dillen said.
EPA spokesman Jonathan Shradar said it is too early to tell how the decision will impact other permits for coal-fired facilities.
The first reading of the ruling indicates the panel "did not agree with our reasoning of why carbon was not regulated" Shradar said, but added there does not appear to be any suggestion that carbon now is regulated because of the decision.
The EPA currently is studying, through a rule-making process, whether carbon should be regulated, he said. SME's Reich said if greenhouse gases are regulated, it should be done with a national policy, not a case-by-case basis, which he believes is unfair.