8-02-09, 8:46 am

Original source: The Atlanta Progressive News   ATLANTA, Jul 31 (IPS) - As more and more states are turning against coal power facilities in the U.S., advocates have been using the legal system to halt new pending plants.

In Georgia, a major case is testing the implications of the 2007 ruling by the Supreme Court in Massachusetts v. Environmental Protection Agency (EPA), that carbon dioxide is a pollutant. 

Two subsequent rulings by a Fulton County Superior Court Judge and the Court of Appeals in Georgia have so far each held up a new plant, Longleaf Energy Station, sought in Georgia's Early County by LS Power of New Jersey. 

If approved, the plant would be the first new coal power plant in Georgia in at least 20 years and one of the only ones opened in the U.S. during the same period, advocates said. 

'It would be an anomaly to see this coal plant get built because nationally they're shutting them down and taking them off-line,' Erin Glynn, Georgia organiser for the Sierra Club's national Beyond Coal Campaign, told IPS. 

'A hundred coal-fired power plants have been stopped in the last 18 months,' Glynn said. 'It's mostly related to the uncertainties about investing in coal. In nearly every case, the investors have mentioned market uncertainties and the risk in investing in coal. It goes back to carbon dioxide, because we know we're going to have to pay for carbon very soon.' 

'Citigroup, Bank of America, and Merrill Lynch have all issued statements staying we will not invest in coal because it causes carbon dioxide, it causes global warming,' Glynn added. 

The tide has turned rather quickly. 

'Between 2005 and 2006, over 200 coal-fired power plants were proposed by the George W. Bush administration. Because that was such a gigantic investment to bring all these polluting power plants online, people starting taking notice. People realised that if all these coal power plants came online, there would be no chance for the U.S. to cure climate change and cap our carbon emissions,' Glynn said. 

Carbon dioxide is just one pollutant of concern, Glynn said. Others include arsenic, mercury, lead and cadmium. 

In the Longleaf case, the Sierra Club and the Friends of the Chattahoochee have made numerous claims, including that the plant permit issued by the Environmental Protection Division of the Georgia Department of Natural Resources to Longleaf did not take into consideration the pollution of carbon dioxide or particulate matter; that the proposed plant does not use the best available technology to reduce pollution; and, among other things, that an Administrative Law Judge did not exercise independence in her original ruling upholding the permit. 

The claims about carbon dioxide have garnered national and even international attention because this is the first case to challenge a coal plant permit for not limiting CO2 emissions, since the 2007 U.S. Supreme Court ruling that it is a pollutant. 

'This is the first case that made its way through the court system to interpret what that means in the case of coal power plants,' Justine Thompson with GreenLaw, which is representing the environmental groups, told IPS. 

The U.S. Supreme Court 'ruled that it was a pollutant. As soon as you say it's a pollutant, all sorts of requirements happen. Under the Clean Air Act, they would have to have certain limits.' 

The plant permit has 'no limits for carbon dioxide, even though the plant is planning to emit nine million tonnes of carbon dioxide each year,' Thompson said. 

The case is important because it would likely have implications for other pending and even existing coal plants. 

'Definitely all new sources that are coming in would have to have CO2 limits, and most likely other [existing] plants as well,' Thompson said. 'This could impact pending applications in other states. Because it's interpreting federal law, other courts will look to the decision. They're not going to be bound by it, but it would be very persuasive, let's put it that way.' 

Fulton County Superior Court Judge Thelma Wyatt upheld several of the advocates' claims on Jun. 30, 2008, when she ruled, among other things, that the permit was not in compliance with the Clean Air Act over the carbon dioxide issue. 

More recently, on Jul. 7 this year, the Georgia Court of Appeals disagreed with the lower court ruling, arguing that the state agencies – which are responsible for implementing the Clean Air Act – had not adapted their rules to be in compliance with the 2007 U.S. Supreme Court ruling. Therefore, the Court of Appeals contends that the permit was issued in compliance with Georgia law. 

However, the judge did agree with the plaintiffs that the Administrative Law Judge (ALJ) who originally ruled on the permit did not exercise independence, instead deferring to the state agency's expertise on key regulatory issues. Because of this, the plant is still at a standstill, and the permit has been remanded back to the ALJ for a new review. 

Thompson said that the environmental groups planned to take the issues that they lost to the Georgia Supreme Court. 

Thompson agreed that the state should have come up with limits, following the Supreme Court ruling. Because the state did not do so, the permit is invalid, she argues. 

Meanwhile, Georgia is quickly becoming one of the few states still considering coal power. 'Both Florida and Texas have issued coal moratoriums, so they're absolutely not considering coal power. That just shows, coal and the South, they don't have to go hand in hand,' Glynn said. 

'We [Georgia] might end up being one of the last states with coal plants built if this one goes through,' Thompson said. 

But advocates even have their doubts about Longleaf. 'LS Power [which has proposed Longleaf] has cancelled three other coal plants. We do know they've lost their financing. Dynergy pulled out in January. They were trying to get a power contract in Florida. That fell through,' Thompson said. 

Meanwhile, the Obama administration appears to be taking new steps to reduce carbon dioxide emissions in the U.S. 

'EPA Director Lisa Jackson issued the endangerment ruling, which says that carbon dioxide is a pollutant which endangers the health and welfare of our population,' Glynn said. 

'That's the first step you can get in regulating the amount of something that can be emitted. We know it's bad, we know it's a pollutant, but now we know it's something that's endangering our health and welfare,' she said. 

--Matthew Cardinale is the News Editor of Atlanta Progressive News, reachable at matthew@atlantaprogressivenews.com.