Kan. SC to hear challenge over proposed power plant's permit

By Jessica M. Karmasek | Aug 20, 2012

Chief Justice Lawton Nuss

TOPEKA, Kan. (Legal Newsline) - The Kansas Supreme Court has agreed to hear a case over an air pollution permit granted to a company to build a new coal-fired power plant in the state.

In a revised docket released Thursday, the state's high court agreed to review Sierra Club v. Robert Moser, et al., at 9 a.m. Aug. 31.

According to the docket, the justices have allotted 20 minutes for oral arguments.

Last year, Earthjustice, representing the Sierra Club, filed a brief in the state Supreme Court seeking to overturn the permit granted to Sunflower Electric Power Corp.

The $1.5 billion power plant, to be constructed near Holcomb, Kan., has been the subject of controversy after initially being denied the permit in 2007.

However, in 2010, the state Department of Health and Environment, or KDHE, issued a new permit to Sunflower.

The environmental groups contend the proposed plant, which will largely serve Colorado, will emit "massive amounts" of air pollutants, including mercury, sulfur dioxide, nitrogen oxides and other particulate matter.

The plaintiffs also argue the most recent permit was "rammed through" due to political pressure from both the state Legislature and the Governor's Office.

In their lawsuit, they claim that the KDHE:

- Issued a permit that falls short of the minimum requirements of the Clean Air Act and will not adequately protect human health and the environment;

- Engaged in an "improper procedure" in the granting of the permit based on a legislative directive, not sound science;

- Denied the public a fair opportunity to participate in the process by rushing through review of comments to allow the project to be permitted prior to new greenhouse gas regulations taking effect;

- Issued a permit without enforceable limits on nitrogen oxides and sulfur dioxide pollution;

- Did not require "best available control technology" on new pollution sources, as required by law; and

- Allowed weak pollution limits even on hazardous toxic air pollutants to save costs.

"Kansans deserve clean energy and clean air," Todd True of Earthjustice said in a statement last year.

"Despite numerous attempts by coal-boosters to push through this project, we believe the permit will not withstand the scrutiny of judicial review."

Sunflower has said the state agency's granting of the permit was scientifically and legally sound.

For now, construction of the 895-megawatt unit is on hold.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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