Posted on November 2, 2009 by Patricia Barmeyer
Over persistent objections from the Sierra Club and a local environmental group, LS Power’s proposed new coal-fired power plant in southwest Georgia continues to make its way through the permitting and appeals process. Correcting the stunning reversal of the permit by the Superior Court on multiple grounds, the Georgia Court of Appeals overturned the Superior Court in most respects, and the Georgia Supreme Court has declined to hear the case.
In May 2007 LS Power obtained a Prevention of Significant Deterioration (“PSD”) permit from Georgia EPD to construct and operate a 1200 MW pulverized coal-fired power plant, the Longleaf Energy Station. Shortly after issuance of the permit, the Sierra Club and a local environmental group filed a seventeen-count petition for administrative review. The petition contained many of the same challenges that Sierra Club has raised in other coal-fired power plant permit appeals all around the country, including the claim that the permit should have contained an emissions limitation for CO2. A state administrative law judge dismissed a number of these counts as a matter of law; the remaining counts were resolved against petitioners after a 21-day evidentiary hearing. The petitioners appealed the ALJ’s decision on six grounds, and in June of 2008, a Fulton County Superior Court judge ruled in favor of petitioners on all six grounds. The Superior Court’s decision was widely-touted by the Sierra Club, and it received national attention, as it was the first court in the country to hold that the Clean Air Act required PSD permits to include an emissions limitation for CO2.
The business community in Georgia rallied to support Longleaf’s efforts to persuade the appellate court in Georgia to reverse the Superior Court holding, and over 100 business entities signed on to an amicus brief urging reversal. On July 7, 2009, the Georgia Court of Appeals reversed the Superior Court on five of the six grounds before the Court. Longleaf Energy Associates, LLC, et al. v. Friends of the Chattahoochee, Inc., et al., Nos. A09A0387 & A09A0388, 2009 WL 1929192 (Ga. Ct. App. July 7, 2009).
Most notably, the Court of Appeals squarely rejected the claim that the Clean Air Act requires an emissions limitation for CO2 in a PSD permit. The Georgia Court of Appeals held that while CO2 may be a pollutant under the Clean Air Act, it is not currently a pollutant “subject to regulation” under the Act because there are no regulations that limit or otherwise control CO2 emissions. The Court’s decision is consistent with former EPA Administrator Stephen Johnson’s December 18, 2008 memorandum which outlined EPA’s official position on this issue in response to the Environmental Appeals Board’s decision in In re: Deseret Power Electric Coop., PSD Appeal No. 07-03 (E.A.B. Nov. 13, 2008). See http://www.epa.gov/nsr/guidance.html. EPA’s new Administrator, Lisa Jackson, is currently reconsidering the Johnson memorandum but has declined to stay the effectiveness of that memorandum during her review. See id. While recent activity both at EPA and in Congress indicate that the treatment of CO2 in the context of PSD permitting may soon be changed, the Georgia Court of Appeals’ decision confirms that, at least for now, the law does not require an emissions limitation for CO2 in PSD permits.
The Court of Appeals likewise rejected the other substantive claims raised by the petitioners. The Court held that EPD was not required to consider integrated gasification combined cycle (“IGCC”) — a type of power plant in which coal is converted into a synthetic gas and that gas is then burned in a combustion turbine to produce electricity — as part of its best available control technology (“BACT”) analysis for the Longleaf facility. The Court reaffirmed a principle that many administrative tribunals and courts have previously recognized: the required scope of a BACT analysis does not extend to those pollution control technologies that would redefine the proposed source. In the case of IGCC, the Court relied on the undisputed physical and chemical differences between an IGCC power plant and the pulverized coal-fired power plant that Longleaf proposed to build to conclude that IGCC could not be applied to the Longleaf facility without redefining the proposed source.
The Court of Appeals also rejected petitioners’ challenge to the air dispersion modeling for fine particulate matter, or PM2.5. EPD and Longleaf utilized PM10 modeling as a surrogate for PM2.5 to demonstrate compliance with the PM2.5 National Ambient Air Quality Standard. The Court reasoned that at the time Longleaf’s final permit was issued, this surrogate approach was the only approved method of conducting PM2.5 modeling for purposes of PSD permitting.
On September 28, 2009, a unanimous Georgia Supreme Court denied Sierra Club’s petition for a writ of certiorari, clearing the way for the parties to proceed with a remand limited to the ALJ’s standard of review. Sierra Club has since moved for reconsideration of that denial, and a decision on that motion is expected soon. For now, however, coal project developers can look to the recent Longleaf decision as an example of a court that has properly refused to preempt the deliberations in EPA and Congress concerning the future of coal-fired power plant permitting.