Fulton County Superior Court Judge Concludes CO2 Regulated By Clean Air Act and Stops Construction of Coal Plant

Yesterday, Fulton County Superior Court Judge Thelma Wyatt Cummings Moore (who is not running for re-election after nearly 30 years on the bench) entered a final order in Friends of the Chattachooche, Inc. and Sierra Club v. Dr. Carol Couch, Director Environmental Protection Division, Georgia Department of Natural Resources and Longleaf Energy Associates, LLC, Superior Court of Fulton County, Georgia, Civil Action File No. 2008CV146398, which effectively stops construction of the first coal-fired power plant proposed for Georgia in more than 20 years. 

Judge Moore concluded that the Environmental Protection Division (EPD) of the Georgia Department of Natural Resources must limit the amount of carbon dioxide (CO2) emissions from the plant by applying Massachusetts v. EPA, 127 S.Ct. 1438 (2007).  This is the first time Massachusetts v. EPA has been used as authority to regulate CO2 from an industrial source rather than from motor vehicles.  Judge Moore found that “there is no question CO2 is subject to regulation under [Clean Air Act, 42 U.S.C. §§ 7401 et seq.].” 

This decision overturns an administrative court’s ruling that affirmed the EPD’s decision to issue an air pollution permit for the construction of the coal plant.  Judge Moore concluded that the issuance of the permit was erroneous because the permit was issued without CO2 limitations based upon a “best available [pollution] control technology” [BACT] analysis. 

The lawsuit was brought in June 2007 by GreenLaw attorneys representing the Friends of the Chattahoochee and the Sierra Cluband filed against the EPD and Longleaf Energy Associates, LLC.  Longleaf had been issued allowing a 1200 megawatt coal-fired power plant to be built in Early County on the banks of the Chattahoochee River south of Columbus.

Longleaf has indicated it will appeal Judge Moore’s decision to the Court of Appeals of Georgia.

You can obtain a pdf of the Court’s Final Order here.

UPDATE:  This decision is hot eliciting editorials from the AJC’s Jay Bookman, Georgia Chamber of Commerce and GreenLaw.

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5 responses to this post.

  1. Posted by Dana Haywood on July 14, 2008 at 6:13 pm

    Superior Court Judge Thelma Wyatt Cummings Moore is a perfect example of what is terribly wrong with this country. A liberal minority who is in a position of power making bad decisions for the majority of the good citizens of this great country. She should be ashamed of her decision. Judges who make such irresponsible decisions should be held accountable. It is time to stop this insanity. Judge shopping seems to be a favorite sport amongst liberals.

  2. […] Fulton County Superior Court Judge Thelma Wyatt Cummings Moore, the Friends of the Chattahoochee, Inc. and Sierra Club say YES. […]

  3. […] Fulton County Superior Court Judge Thelma Wyatt Cummings Moore, the Friends of the Chattahoochee, Inc. and Sierra Club say YES. […]

  4. […] over the proposed coal plant generated national news when a Fulton County Superior Court Judge concluded Carbon Dioxide was regulated by the Clean Air Act.  That decision remains on appeal before the […]

  5. […] Two years ago, Fulton County Superior Court Judge Thelma Wyatt Cummings Moore controversially concluded the same thing Friends of the Chattachooche, Inc. and Sierra Club v. Dr. Carol Couch, Director Environmental Protection Division, Georgia Department of Natural Resources and Longleaf Energy Associates, LLC, Superior Court of Fulton County, Georgia, Civil Action File No. 2008CV146398 in a challenge to a coal-fired power plant to be built in Early County, Georgia on the banks of the Chattahoochee River south of Columbus.  […]

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