Georgia Appeals Court Rules Against Coal-Fired Power Plant

Although the Court of Appeals reversed a lower court ruling invalidating the plant's air quality permit on several issues, it upheld the lower court decision on other issues. At this point, the draft air quality permit granted by the Georgia Environmental Protection Division in May 2007 remains invalid.

The plant would be a 1200 megawatt coal-burning power plant along the Chattahoochee River, south of Columbus near the Georgia-Alabama state line. If built, it would be the first new coal-fired power plant in Georgia in over 20 years, but today's decision is the second legal defeat for the proposed plant in just 13 months.

The Chattahooche River at Columbus, Georgia (Photo by Brandon Wason)

The Longleaf unit is one of four new coal plants LS Power Development proposes to build around the nation. Longleaf Energy Associates, a branch of LS Power, originally proposed the plant. In March 2007, LS Power merged with Dynegy to form the largest builder of coal plants in the country.

Civil rights advocates, healthcare providers, and patient advocacy groups around the state have lined up against the Dynegy Longleaf plant. The Medical Association of Georgia issued a resolution opposing any new coal-fired plants in the state.

The air quality permit was granted by the state over the objections of GreenLaw, Sierra Club, and Friends of the Chattahoochee, who mounted a legal challenge to the permit.

The groups informed the Environmental Protection Division that in their opinion the proposed plant was being built without safeguards sufficient to protect Georgia residents from an array of 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.

In reaching their decision, the three-judge panel agreed with the Superior Court on one key claim, that Administrative Law Judge Stephanie Howells was not independent in her evaluation of the Environmental Protection Division'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 Administrative Law Judge failed to make independent decisions in reviewing the permit, the permit remains invalid, further postponing construction of the plant.

GreenLaw's challenge of the Longleaf air quality permit also challenged EPD's failure to include any limitations for the greenhouse gas carbon dioxide and its failure to consider undisputed modeling that showed that the plant would exceed air quality standards.

The Court of Appeals rejected the claim that the plant must limit its emmissions of the greenhouse gas carbon dioxide, CO2.

GreenLaw and the other plaintiffs argue that Longleaf must establish a limit for CO2 based on the best available control technology because the U.S. Supreme Court ruled that CO2 is a pollutant in April 2007 in the case of Mass. v. EPA.

The plaintiff groups argue that federal law requires a limit on any pollutant subject to regulation and plan to appeal that portion of the appellate court's ruling to the Georgia Supreme Court.

"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."

"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," said Mark Woodall, chair of the Executive Committee Sierra Club of Georgia. "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."

The plaintiff groups argue that coal-fired power plants are a leading cause of smog, acid rain, and global warming and there is no need to build a new one in the state of Georgia.

Bobby McLendon, president of Friends of the Chattahoochee, said, "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."

Copyright Environment News Service, ENS, 2009. All rights reserved.