Global Climate Law Blog : Global Climate Law Blog : Published by Howrey Law Firm : Climate Attorneys and Environmental Lawyers

The Kansas Attorney General has moved to dismiss the case, contending  that the federal court lacks jurisdiction because an appeal is pending before the Department of Administration's Office of Administrative Hearings. On July 22, 2008, a state court dismissed an action by Sunflower saying that it did not have jurisdiction to rule on the matter because the Kansas Court of Appeals has exclusive jurisdiction over issues arising from the Kansas Department of Health and Environment's denial of a permit application. The Kansas Supreme Court has postponed the case before it until the Office of Administrative Hearings rules.

Sunflower contends that it is not asking the federal court to rule on issues of state law or to enjoin the state administrative proceedings. Instead, the company is bringing its challenge based on Equal Protection and Interstate Commerce claims under the United States Constitution, alleging that Kansas Health and Environmental Secretary Rod Bremby denied the permit despite his own staff's recommendation to approve the application. Bremby denied the permit on the grounds that the new plants' carbon emissions would contribute to global warming. Sunflower contends that carbon dioxide emissions are not currently regulated in Kansas or the United States and have not been used as a reason to deny an air permit for any other facility in Kansas. Sunflower contends that the case implicates the rights of over 400,000 citizens of Kansas and over 1.5 million citizens of other states whose energy needs would be met in part by electricity generated by the proposed coal-fired plants.