Posts Tagged ‘Coal Plant’

EPA Will Regulate Carbon Dioxide

The Environmental Protection Agency now concludes that greenhouse gases pose a danger to human health and the environment, paving the way for regulation of carbon dioxide emissions from vehicles, power plants, factories refineries and other major sources.

The move gives President Obama a significant tool to combat the gases blamed for the heating of the planet even while Congress remains stalled on economy-wide global warming legislation.

The Obama administration has signaled its intent to issue a so-called endangerment finding for carbon dioxide and five other greenhouse gases since taking office in January.

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. 

The proposed coal plant was abandoned in early 2009.

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Coal Plant Proposal At Issue In Fulton County Superior Court Decision Concluding CO2 Regulated by Clean Air Act Abandoned

The proposal for a new coal power plant in Early County Coal appears to be dead.  Dynegy Inc., the Texas-based energy company that proposed what would’ve been Georgia’s first new coal power plant in 20 years, announced today that it has pulled out of the project. 

From a company press release:

Dynegy Inc. (NYSE:DYN) today announced that it has entered into an agreement with LS Power Associates, L.P. to dissolve the two companies’ development joint venture. Under the terms of the dissolution, Dynegy will acquire exclusive rights, ownership and developmental control of all repowering or expansion opportunities related to its existing portfolio of operating assets. LS Power will acquire full ownership and developmental rights associated with various “greenfield” projects under consideration in Arkansas, Georgia, Iowa, Michigan and Nevada, as well as other power generation and transmission development projects not related to Dynegy’s existing operating portfolio of assets.

The reason?

The development landscape has changed significantly since we agreed to enter into the development joint venture with LS Power in the fall of 2006,” said Bruce A. Williamson, Chairman, President and Chief Executive Officer of Dynegy Inc. “Today, the development of new generation is increasingly marked by barriers to entry including external credit and regulatory factors that make development much more uncertain. In light of these market circumstances, Dynegy has elected to focus development activities and investments around our own portfolio where we control the option to develop and can manage the costs being incurred more closely.

Litigation over the proposed coal plant generated national headlines and new law when a Fulton County Superior Court Judge concluded Carbon Dioxide was regulated by the Clean Air Act.  That decision remains on appeal before the Georgia Court of Appeals.  It is unclear how the abandonment of the coal plant proposal will impact the pending litigation.

Georgia Court of Appeals Will Hear Fulton County Superior Court CO2 Decision

The Georgia Court of Appeals has accepted the appeal of Fulton County Superior Court Judge Thelma Wyatt Cummings Moore’s decision that the Georgia Air Quality Act and the federal Clean Air Act (CAA) regulate emission of carbon dioxide (CO2).   A decision is not likely until early 2009.

Fulton County Superior Court CO2 Decision Appealed

At its heart the question is whether the Georgia Air Quality Act and the federal Clean Air Act (CAA) regulate emission of carbon dioxide (CO2). 

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

Dr. Carol Couch, Director of the Environmental Protection Division (EPD) of the Georgia Department of Natural Resources, Longleaf Energy Associates, LLC and a host of amici led by the Georgia Chamber of Commerce and ranging from utility companies, local Chambers of Commerce, health care professionals, homebuilders, and politicans all say NO.

Applications for appeal have been filed with the Court of Appeals of Georgia, Longleaf Energy Associates v. Friends of the Chattahoochee, No. A08D0472 and Couch v. Friends of the Chattahoochee, No. A08D0473.  The Appellate Court has until August 29 to decide whether to accept the appeal.

The appeals seek the complete reversal of Judge Moore and argue that Massachusetts v. U.S. Environmental Protection Agency only held that the U.S. Environmental Protection Agency (EPA) could, not does regulate CO2 under the CAA.  The contention is that Judge Moore jumped the gun and should have waited on the EPA to make the decision as to whether and how to regulate CO2.

Longleaf’s Application can be found here, EPD’s Application here, and the Amici Application here

You can obtain a copy of Judge Moore’s decision here.

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.