Kansas AG asks judge to toss utility's lawsuit

Chris Rizo Dec. 3, 2008, 3:00pm

Steve Six (D)

TOPEKA, Kan. (Legal Newsline)- Kansas Attorney General Steve Six is asking a federal judge to dismiss Sunflower Electric Power Corp.'s lawsuit against the state for denying its request to build two power plants.

The utility sought an air quality permit under the Kansas Air Quality Act so it could build a pair two 700 megawatt coal-fired power plants in southwest Kansas.

The state Department of Health and Environment (KDHE) rejected the Hays, Kansas-based utility's application in October 2007, citing increased carbon emissions and the projects' impact on global warming.

On Tuesday, the Democratic attorney general filed court papers saying the U.S. district court lacks jurisdiction in the case, which is pending before an administrative law judge and the Kansas Supreme Court.

"Both of the ongoing state proceedings concern Kansas' environment and its pollution permitting process, which are important state interests that, as a matter of law, are exclusively assigned to the KDHE," the attorney general's office said in one of its filings Tuesday.

The motion continued that the state proceedings "offer an adequate opportunity" for the utility to litigate its constitutional claims.

The utility has argued that the state does not regulate carbon emissions, so state Department of Health and Environment Secretary Rod Bremby's decision in October to block the proposed Holcomb Station expansion on those grounds was illegal.

"In denying the air permit, the administration has discriminated against 400,000 Kansans and over 1.5 million citizens from other states who will be forced to pay the price of this decision for decades to come through higher electric rates," Sunflower CEO and President Earl Watkins said in a statement announcing the lawsuit.

From Legal Newsline: Reach reporter Chris Rizo at chrisrizo@legalnewsline.com.

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