The air pollution permit for a new 1200 megawatt coal-fired power plant in Early County, Georgia, was revoked yesterday by a state court judge.  Environmental groups challenged Longleaf Energy Associates’ (Longleaf) permit approval, arguing (among other things) that Longleaf did not properly account for CO2 emissions or incorporate the required pollution control technologies in the plant design.

Superior Court Judge Thelma Wyatt Cummings Moore ruled that the permit must “identify, evaluate, or apply available technologies that would control CO2 emissions” at the plant.  Citing the 2007 Supreme Court decision in Massachusetts v. EPA, Judge Moore wrote that “there is no question that CO2 is ’subject to regulation under the [Clean Air] Act’” (CAA).

Any air pollutant that is subject to regulation must be mitigated with “Best Available Control Technology” (BACT).  Judge Moore rejected Longleaf’s argument that CO2 is not subject to regulation because there are no controls or limits on CO2 emissions under the CAA - or any other federal law.  “Since CO2 is ‘otherwise subject to regulation under the Act,’ a . . . permit cannot issue for Longleaf without CO2 emission limitations based on a BACT analysis.”

The combustion method used at the plant was also a major issue in the case.  Coal-fired power plants can utilize two combustion methods.  The traditional method is burning coal directly to create steam, which turns the turbines to generate electricity.  The newer operating method, known as integrated gasification combined cycle (IGCC) technology, requires converting the coal to gas form, and then burning the gas to create steam.  IGCC, despite requiring significantly higher capital costs upfront, reduces CO2 (and mercury and particulate matter) emissions as compared to burning the coal directly.  As a result, Judge Moore held that the BACT requirements mandate that Longleaf analyze using IGCC combustion technology for the power plant.

Longleaf has already signaled its intent to appeal Judge Moore’s decision.  The main argument is likely to focus on Moore’s interpretation of Massachusetts v. EPA.  The Supreme Court there held that EPA has the authority to regulate CO2 emissions from automobiles, and ordered the agency to make a determination whether these emissions endanger the public health and welfare (the agency has not yet made this determination).  It is arguably unclear, however, whether CO2 is currently “subject to regulation” under the CAA.  While certain regulated industries are in fact required to monitor and report CO2 emissions to the EPA, an appellate court could plausibly decide that the lack of limits or mitigation requirements take CO2 outside the “subject to regulation” requirement.  Such a determination would be a significant victory for power interests, and a substantial defeat for environmental advocates, who see this case as a major precedent for future challenges to coal-fired power plants across America.

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