Kansas judge takes Sunflower arguments under advisement; Legislature may moot ruling
*Updated 2/23/09 - added link to administrative proceeding opinion.
Oral arguments on a motion filed by Governor Kathleen Sebelius to dismiss a lawsuit filed by Sunflower Electric Power Co. were heard earlier this month in US District Court for the Federal District of Kansas. That ruling may be moot, however, as the Kansas Legislature is considering a bill (SB 265) that would limit the state’s environmental regulators from enforcing air quality standards in excess of federal limits. The legislature also considered a proposal to allow Sunflower to resubmit its request for air quality permits to build the new coal-fired plants. The Republican-led legislature passed three bills previously permitting the construction of the plants to go forward, but the Governor rejected the bills and the legislature failed to override the Governor’s veto.
As reported in an earlier post, Sunflower filed a lawsuit naming the Governor, Lt. Governor Mark Parkinson, and Secretary of the Kansas Department of Health and Environment Rod Bremby, because Sunflower was denied a permit to build two coal-fired power plants allegedly due to concerns about CO2 emissions. Sunflower alleges that neither Kansas nor the United States currently regulates CO2 emissions. Secretary Bremby argues that his decision was based on the US Supreme Court’s 2007 holding in Massachusetts v. EPA, that CO2 was a pollutant and a Kansas attorney general’s opinion giving him broad authority to protect the environment and human health. Judge Eric Melgren has taken the arguments under advisement and plans to rule on the motion at a later date.
Meanwhile, an administrative proceeding concerning the Sunflower plants may be heard by the Kansas Supreme Court. In December, an administrative officer ruled against Sunflower in a non-binding opinion. That opinion now may be headed for the state Supreme Court for a final determination. What will happen if the federal and state courts issue opposing rulings? Perhaps the Legislature will moot this question before we can find out.
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