Court of Appeals Decision Delays Coal-fired Power Plant

Second Defeat for Longleaf Plant in Last Year

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July 7, 2009 – Today the Georgia Court of Appeals issued an order resulting in further delays for a coal-fired power plant in Early County, Georgia. Although the Court of Appeals reversed the lower court on several issues, today’s ruling is the second defeat for the proposed plant in a little more than a year. The permit for the plant remains invalid, calling into serious question the future viability of the project.

The air pollution permit was originally granted by the Environmental Protection Division (EPD) in May of 2007 over the strong objections of GreenLaw, Sierra Club, and Friends of the Chattahoochee, among others, all of whom alerted EPD that the proposed plant was being built without safeguards sufficient to protect the citizens of Georgia from an array of poisonous toxins such as sulfur dioxide, nitrogen dioxide, particulate matter and sulfuric acid mist. The permit was invalidated by Fulton County Superior Court Judge Thelma Wyatt Cummings Moore on June 30, 2008. As a result of today’s ruling by the Court of Appeals, the permit is still invalid.

In reaching their decision, the three-judge panel agreed with the Superior Court on one key claim: that the Administrative Law Judge (ALJ) was not independent in her evaluation of EPD’s decision to issue the permit. Judicial independence is a key component of ensuring that decisions that impact public health are properly scrutinized. Because the ALJ failed to make independent decisions in reviewing the permit, the permit remains invalid, further postponing any construction of the plant.

GreenLaw’s challenge of the permit also challenged EPD’s failure to include any limitations for carbon dioxide and its failure to consider undisputed modeling that showed that the plant would exceed air quality standards. The Court reversed the Fulton Superior Court’s findings on these matters. Friends of the Chattahoochee and Sierra Club plan to appeal these rulings to the Supreme Court.

Of particular note is the Court of Appeals’ rejection of the claim that the plant must limit its carbon dioxide (CO2) emissions. While the Court cited current Congressional attention to a comprehensive CO2 public policy, it confused this debate with the clear federal statute that requires a limit on any pollutant subject to regulation. The plaintiffs argue that Longleaf must establish a limit for CO2 based on the best available control technology because the Supreme Court has said that CO2 is a pollutant (Mass. v. EPA).

“We are extremely pleased that the Court of Appeals has required independent review of the errors that were made in the permitting of this plant,” said Justine Thompson, Executive Director of GreenLaw. “However, we are very disappointed that the Court rejected other important claims that are critical to the protection of public health. We feel confident that the Georgia Supreme Court will reverse on appeal.”

Mark Woodall, Chair of the Executive Committee Sierra Club of Georgia, commented, “We are glad to see the Court demanding independent review of EPD’s decision before any coal-fired power plant can be built in this state. Burning coal creates some of the worst pollution, endangering human health. However, we are committed to ensuring that Georgia follows the law with respect to carbon dioxide and other pollutants, and will take what legal steps are necessary to ensure that this happens.”

“Many people in Early County do not believe that this plant is needed to meet any short-term energy demand in our region, or even in our state, and we hope that the business and civic leaders of Georgia will begin to put more emphasis on energy efficiency and renewable energy in the future,” said Bobby McLendon, President of Friends of the Chattahoochee.

Coal-fired power plants are a leading cause of smog, acid rain, and global warming. The plant would be a 1200-megawatt coal-fired power plant in Early County near the banks of the Chattahoochee River, south of Columbus. Civil rights advocates, healthcare providers, and patient advocacy groups around the state lined up against the proposed plant. The Medical Association of Georgia issued a resolution opposing any new coal-fired plants in the state.