Fulton Judge Stops Coal-Fired Power Plant

June 30, 2008 - Fulton County Superior Court Judge Thelma Wyatt Cummings Moore sent an air pollution permit for a coal-fired power plant back to the drawing board. This decision was a landmark victory for clean air in the state of Georgia-and a decision that spread hope around the nation to others fighting the pollution from coal-fired power plants.

The air pollution permit was for a Texas company, Dynegy, that wants to produce electricity by burning coal in South Georgia-electricity they plan to sell on the open market to the highest bidders in Florida, Alabama, or Georgia. GreenLaw attorneys represented the Friends of the Chattahoochee and Sierra Club in the lawsuit. Board member David Walbert handled the oral arguments before Judge Moore.

The Judge found a serious failure to comply with the Clean Air Act, which protects all Americans from harmful levels of pollution. Her order told the state Environmental Protection Division (EPD) to re-examine how to protect the public when approving such facilities. The Clean Air Act requires that EPD permits for massive new sources of pollution, like the proposed power plant, must limit the amount of all pollutants that are subject to regulation under the Act. In her decision, Judge Moore applied this straightforward rule to carbon dioxide (CO2) emissions, recognizing that CO2 is a pollutant that is clearly covered by federal law.

This decision means that another coal-fired power plant cannot be built in our state unless it has adequate pollution controls to protect public health and reduce dangerous levels of carbon dioxide emissions. This is the first time in the nation that the Supreme Court decision of April 2007 defining CO2 as a pollutant has been applied to stationary sources rather than motor vehicles. The permit also requires restrictions on sulfur dioxide, nitrogen dioxide, sulfuric acid mist, and particulate matter emissions for the plant.

The plant is slated to be built in Early County, located in southwest Georgia, along the Chattahoochee River, a rural county with economic disadvantages. In addition to producing nine million tons of carbon dioxide-compared to the 3.7 million tons produced by the average plant-the new plant would emit large amounts of sulfur dioxide and nitrogen oxide (causes of smog and acid rain), and fine particulate matter that can cause sudden death, premature birth, lung cancer, lung disease, asthma, bronchitis, heart disease, heart attacks, or chronic respiratory diseases. Georgia has experienced as many as 946 deaths related to the 10 coal-burning power plants operated by Georgia Power. The plant would also be permitted an intake of 27 million gallons of water from the Chattahoochee, of which only five million would be returned.

EPD and Dynegy immediately announced their intent to appeal the decision to the Georgia Court of Appeals. They have 30 days to submit their request; the Court has the discretion to take the case. GreenLaw will defend the decision to the highest court level necessary.