Craig Sparks

October 26, 2007

On October 18, 2007, Kansas' top regulator turned many heads when he announced the rejection of an energy company's permit to build a coal-fired power plant. Nineteen months after Sunflower Electric Power Corp. ("Sunflower Corp") applied for approval to build two 700-megawatt electrical generators, Roderick L. Bremby, Secretary of the Kansas Department of Health and Environment ("KDHE"), denied the utility's air quality permit on the basis of the plant's significant carbon dioxide emissions and its subsequent contribution to climate change.

If constructed, the proposed 3.6 billion dollar plant near Holcomb, Kansas would add yet another generating facility to Kansas' fifteen existing coal-fired power plants, emitting an additional ten-to-fourteen million tons of carbon dioxide each year. Bremby, however, stated "it would be irresponsible to ignore emerging information about the contribution of carbon dioxide and other greenhouse gases to climate change and the potential harm to our environment and health if we do nothing." Accordingly, Brembly suggested Kansas look instead to clean and renewable energy sources for its electrical needs.

In support of his decision, Bremby explained that Kansas law provides the KDHE with the authority to declare carbon dioxide hazardous to the environment and human health, thereby allowing the agency to deny an air quality permit based on high carbon dioxide emissions. Bremby further noted that his decision coincides with the Supreme Court's recent ruling in Massachusetts v. EPA. There, the Court stated that carbon dioxide is a pollutant that may be regulated under the federal Clean Air Act.

Environmental groups hail Bremby's decision as a significant victory in the fight to reduce carbon dioxide emissions. Nicholas Persampieri, an attorney for Earthjustice representing the Sierra Club in a lawsuit against Sunflower, applauded Bremby's decision stating "[t]oday, Kansas embraced a bright, clean energy future powered by new technologies that will breathe life into our economy and took a giant first step toward protecting our children and grandchildren from the devastating impacts of global warming."

Conversely, Sunflower Corp. described Bremby's decision as arbitrarily regulating carbon dioxide emissions, of which no legal standard currently exists. Although the Sunflower Corp. has yet to announce how it will proceed, the utility is likely to appeal the decision in an administrative forum, and if necessary, Kansas state court. The permit rejection also received stark criticism by several Kansas lawmakers questioning the scope of Bremby's authority in rejecting the permit based on carbon dioxide emissions and the negative effects it may have on economic development in rural Kansas. Both Sunflower Corp. and these lawmakers feel the plant will eventually be approved and built.

Sources:

John Hanna, Kansas Regulator Rejects Permit for Coal Plants, The Wichita Eagle, Oct. 18, 2007, available at http://www.kansas.com/news/updates/story/203405.html.

Steven Mufson, Power Plant Rejected Over Carbon Dioxide for First Time, Wash. Post, Oct. 19, 2007, available at http://www.washingtonpost.com/wp-dyn/content/article/2007/10/18/AR2007101802452_pf.html.

Press Release, Kansas Department of Health and Environment, KDHE Denies Sunflower Electric Air Quality Permit, Oct. 18, 2007, available at http://www.kdheks.gov/news/web_archives/2007/10182007a.htm.

Press Release, Earth Justice, Kansas Rejects Massive Sunflower Coal-Fired Power Plant: State Takes Lead in National Trend Against Dirty Energy Source, Oct. 18, 2007, http://www.earthjustice.org/news/press/007/kansas-rejects-massive-sunflower-coal-fired-power-plant-1.html.

Massachusetts v. EPA, 127 U.S. 1438 (2007).