Georgia court ruling regarding Longleaf Energy coal plant reversed
The Georgia Court of Appeals last week reversed and remanded a Superior Court decision that would have required Best Available Control Technology (BACT) for carbon dioxide emissions from a proposed new coal power plant. The $2 billion Longleaf Energy Plant would be the first new coal plant in Georgia in more than two decades. GreenLaw, the Sierra Club and other environmental groups sought to block the plant’s construction based on the US Supreme Court’s ruling in Massachusetts v. EPA allowing greenhouse gases to be regulated under the Clean Air Act. Construction was halted in June 2008 when Fulton County Superior Court Judge Thelma Wyatt Cummings Moore ruled that federal air pollution laws require permits for all pollutants that could be regulated under the federal Clean Air Act - including carbon dioxide. Judge Moore’s ruling invalidated the Longleaf Energy Plant’s permit, and was the first time a judge applied the Massachusetts v. EPA carbon dioxide holding to emissions from an industrial source.
With federal legislation to regulate CO2 and other greenhouse gases pending, the Appeals Court held that Judge Moore's order would pre-empt federal efforts to regulate the gas, require the state to invent new regulations and ultimately lead to "a regulatory burden on Georgia never imposed elsewhere."
In reaching their decision, the three-judge panel agreed with Judge Moore on one key claim: that the Administrative Law Judge (ALJ) was not independent in her evaluation of the decision to issue the permit. Therefore, the appeals panel sent the case back to the Superior Court with directions to vacate ALJ Stephanie M. Howells' approval of the coal-fired plant permit saying Howells had employed the wrong standard of review in approving the permit. Howells' 108-page decision, which followed a 21-day hearing, contained language suggesting the EPD director's decision to issue a permit should be given some deference.
LS Power, the plant's developer, said the company looks forward to moving the project forward after years of delays. "We'll take it," said company spokesman Mike Vogt, who said the ruling overturns 95 percent of the trial judge's order. "We feel pretty good about our chances here."
“We are very disappointed that the Court rejected other important claims that are critical to the protection of public health," said Justine Thompson, director of GreenLaw, which challenged the permit. Ms. Thompson asserts that the Court of Appeals confused congressional discussions of comprehensive carbon dioxide controls through a cap-and-trade scheme with the regulatory scheme at issue in the case before the court. She said GreenLaw will appeal to the Georgia Supreme Court.
