ClimateIntel.com

On April 28, 2010, Secretary of the Interior Ken Salazar approved “Cape Wind,” a $1 billion, 130-turbine wind farm south of Cape Cod.  The announcement came nine years after the developer filed an initial permit application, and Secretary Salazar promised that in the future the “layers of review upon layers of review” responsible for the delay would be streamlined into a more “rational and orderly process.” It also came eight days after the Deepwater Horizon drilling rig accident in the Gulf of Mexico, and as the scale of that spill became apparent, clean energy advocates greeted this first federal approval of offshore wind as a positive, but belated, first step.

Opponents, however, simply vowed to keep fighting. On June 25, 2010 a coalition of six environmental groups and three individuals filed suit alleging that the Secretary’s approval violated the Endangered Species Act, Migratory Bird Treaty Act, National Environmental Policy Act, and Administrative Procedure Act, through various inadequacies in its consideration of project impacts on the roseate tern, piping plover and right whale. Officials have dismissed the suit as groundless, and the project’s developers have attacked the plaintiffs and their motives. Rancor and rhetoric have been abundant enough throughout the saga that Cape Wind has yielded both an acclaimed book and a soon-to-be-released feature film.

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Yesterday GreenLaw and the Southern Environmental Law Center filed five petitions for hearings with the Georgia Office of State Administrative Hearings concerning the state-approved air and water permits issued to two Georgia coal-fired plants-LS Power Group’s proposed Longleaf Energy Station and Plant Washington.  The petitions assert that the permit terms and conditions are not adequate to protect the surrounding community and environment.

GreenLaw challenges the air quality permit and the construction deadline for the Longleaf Energy Station.  GreenLaw opposes the characterization of the 1200-megawatt Longleaf as “a minor source” of pollution, claiming the plant will not be held to sufficiently stringent air pollution standards.  They also oppose a construction extension for the plant, which they argue could enable LS Power Group to build with outdated technologies.

Three petitions, filed by GreenLaw and the Southern Environmental Law Center, for the Washington Plant alleged three basic deficiencies in the permits.  First, they challenge the air permit, asserting that it inadequately controls sulfuric acid mist and particulate matter.  Second, the petitioners argue that the water permits authorize unlawful amounts of water usage from the Ogeechee River watershed.  Third, they claim that the permit insufficiently controls the temperature of wastewater discharge that would flow into the Oconee River.

LS Power Group, supported by a group of six electric membership cooperatives, labeled Power4Georgians, believes that Georgia correctly issued the permits and that petitioners challenges will be rejected.

ClimateIntel has previously written about the Longleaf Power Plant.  To view these posts, please visit the below links.

“Implications of Regulating CO2 as an NSR Pollutant”

“Georgia Appeals Court to Review Rejection of Coal-Fired Power Plant Permit”

“Georgia Court Revokes Air Pollution Permits for Coal-Fired Power Plant”

Last year, Swedish Company Vattenfall announced its plans to go on-line with a major pilot program to test carbon capture and sequestration at a coal-fired power plant.  The company recently acknowledged that permitting snags fueled by local opposition render it unable to commence geologic sequestration of captured CO2.  Vattenfall intended to begin capturing CO2 at its 30-megawatt Schwarze Pumpe facility, located in Spremberg, Germany, and sequestering it in the nearby Altmark depleted gas field by March or April 2009. Residents of the host-city, however, have expressed concerns about the safety of geological sequestration, preventing the final permitting approval for the site and creating questions about when - or if - the site could be available for any CCS operations. 

Vattenfall’s experience at this project is not an isolated incident.  Vattenfall reported delays in obtaining approvals for one of its Danish storage projects pointing, in part, to public opposition by local stakeholders.  In June, German news sources reported that activists were protesting plans by electric utility RWE to transport captured CO2 by pipeline from a powerplant near Cologne to a sequestration site on Germany’s North Sea Coast.  The Wall Street Journal also reported in April that Royal Dutch Shell had run into challenges siting a sequestration facility in Barendrecht, Netherlands, due to grass roots opposition from local residents. 

Public opposition is likely to be a critical strategic and legal consideration for US projects.  On Friday, August 21, Battelle, the lead partner in a Midwest Regional Carbon Sequestration Partnership project announced that it was abandoning plans to participate in a $92 million public-private demonstration project to site a geological sequestration project in Western Ohio.  While the partner cited only “business reasons” for its decision, the reported public opposition to the project could not have helped. 

These setbacks illustrate the significant challenges that the siting and permit-approval process can pose, particularly in the face of public opposition, to an otherwise promising project.  This will be particularly true during the early stages of a CCS deployment.  US policymakers and investors would do well to watch and learn from these early case studies, and to ensure that they devote the legal, political and community relations resources needed to ensure that proposed projects move forward in a realistic and timely fashion.

As reported earlier, the Department of the Interior (DOI) and Federal Energy Regulatory Commission (FERC) have been negotiating an agreement to outline and clarify the agencies’ respective jurisdiction and responsibilities for renewable energy projects in offshore waters on the Outer Continental Shelf (OCS).  On April 9, Secretary of the Interior Ken Salazar and FERC Chairman Jon Wellinghoff finally signed a Memorandum of Understanding (MOU) to facilitate development of a “cohesive, streamlined process” to accelerate wind, solar, and hydrokinetic (wave, tidal, and ocean current) energy projects on the OCS, ending a long dispute between the agencies.

In short, the MOU preserves the authority of DOI’s Minerals Management Service (MMS) over offshore wind and solar projects and gives MMS authority to issue leases, easements, and rights-of-way for OCS hydrokinetic projects, for which projects FERC will then have exclusive jurisdiction to issue construction and operating licenses or exemptions.  MMS had previously asserted jurisdiction over all energy projects on the OCS, including hydrokinetic projects, and even sought to block preliminary permits issued by FERC.  Specifically, the agencies agree that:

• MMS will retain exclusive jurisdiction over the production, transportation, and transmission of energy from non-hydrokinetic OCS projects;
• MMS will: (1) have exclusive jurisdiction to issue leases, easements, and rights-of-way for hydrokinetic OCS projects; and (2) conduct any necessary environmental reviews for those actions, including reviews under the National Environmental Policy Act (NEPA), while FERC has discretion to act as a cooperating agency in those reviews;
• FERC will not issue preliminary permits for hydrokinetic OCS projects, but will: (1) have exclusive jurisdiction to issue licenses and exemptions for those projects, with active involvement of federal land and resource agencies, including DOI; and (2) conduct any necessary environmental reviews for those actions, including under NEPA, while MMS has discretion to act as a cooperating agency in those reviews;
• The agencies will coordinate to ensure that: (1) hydrokinetic OCS projects meet the public interest, including adequate protection, mitigation, and enhancement of fish, wildlife, and marine resources and other beneficial public uses; and (2) any FERC license or exemption or FERC-regulated operations under an MMS lease, easement, or right-of-way are consistent with the Outer Continental Shelf Lands Act, the Federal Power Act, and other applicable laws;
• MMS may condition leases, easements, and rights-of-way for hydrokinetic OCS projects and FERC will include in any license or exemption for those projects a requirement to comply with the MMS conditions;
• FERC will not issue a license or exemption for any hydrokinetic OCS project until the applicant has obtained an MMS lease, easement, or right-of-way;
• MMS will provide in all leases, easements, and rights-of-way for hydrokinetic OCS projects that construction or operation cannot begin without a FERC license or exemption, unless FERC notifies MMS that no license or exemption is required;
• FERC may inspect hydrokinetic OCS projects to ensure compliance with licenses or exemptions and MMS may inspect those projects to ensure compliance with any applicable lease, easement, or right-of-way; the agencies will work to coordinate inspections through development of joint policies or regulations, as appropriate;
• Each agency will use its own appropriations to fulfill its respective responsibilities;
• The agencies will work together, to the extent practicable, to develop policies and regulations for hydrokinetic OCS projects, including processes to address “hybrid” (wind/hydrokinetic) projects or projects that straddle state waters and the OCS; and
• The MOU is “strictly for internal management purposes,” does not expand or alter the scope of either agency’s authority, and shall not be construed to create any legal obligation on either agency or any private right or cause of action.

The MOU is effective as of April 9, 2009, may be modified only upon further written agreement of the agencies, and can be terminated 120 days after written notice to the other agency.

In a joint press release, Secretary Salazar noted that the MOU “will spur the development of clean, renewable energy,” while Chairman Wellinghoff noted the MOU, “[b]y removing all the regulatory barriers to the development of hydrokinetic energy” on the OCS, “will advance the development of a promising renewable resource” that will benefit consumers.

As noted earlier, however, others have questioned whether the agencies’ agreement will be effective.  For example, Senate Energy and Natural Resources Committee Chairman Jeff Bingaman has expressed doubt that the agreement will actually streamline the development process and both Chairman Bingaman and Ranking Member Senator Lisa Murkowski have suggested that a more definite legislative solution could be included in a forthcoming energy bill.

Even if not fully effective to minimize delays and inefficiencies in developing renewable energy projects in OCS waters, the MOU does end the confusion over the respective jurisdiction of the two agencies.  Still, as suggested by other recent commentary, the MOU does not resolve how MMS will address criticisms lodged against its proposed regulations for alternative energy projects in OCS waters or when either agency will issue further proposed or final rules for their respective processes.  Secretary Salazar has suggested that MMS regulations could be ready in as little as a few months, while the timeline for new FERC rules, if any, remains to be seen.  Both issues will need to be resolved before either agency can begin siting projects.

This post was contributed by Lyle Denniston, writing at our sister site, SCOTUSblog.com.

Parsing what Congress means when it is silent, the Supreme Court on Wednesday decided that federal environmental regulators may let more than 500 electric power plants use less-costly devices to take water for cooling out of the nation’s waterway, even if that does less than could be done to protect fish and tiny forms of aquatic life.  The decision was a significant loss for conservationists, and for states that wanted more rigorous protection of the fish, shellfish and tiny plankton at the bottom of the aquatic food chain in their rivers and streams.

Although the ruling in Entergy Corp. v. Riverkeeper (07-588) was limited to government controls on water pollution, it seemed to speak more generally in allowing federal agencies in other fields to opt for lower-cost technology even if not the best for the environment, unless Congress explicitly forbids them to do so.

Justice Antonin Scalia examined a provision of the Clean Water Act that controls industry structures for pulling plant-cooling water out of rivers and streams, and found that Congress had said nothing there about whether EPA could weigh costs against benefits and choose a lower-cost option. “It is eminently reasonable,” Scalia wrote, “to conclude that [that section’s] silence is meant to convey nothing more than a refusal to tie the agency’s hands as to whether cost-benefit analysis should be used, and if so to what degree.”

If Congress’ silence meant prohibition, then federal agencies would not be able to take into account any considerations that Congress did not expressly leave to their discretion, Scalia said.

To Justice John Paul Stevens and two other dissenters, congressional silence—at least in this legislation—spoke more definitively.  In the environmental field, the dissenters argued, “Congress granted the EPA authority to use cost-benefit analysis in some contexts but not others” and Congress intended “to control, not delegate, when cost-benefit analysis should be used.” Thus, under the Clean Water Act, silence on Capitol Hill did not mean “an invitation for the Agency to decide for itself which factors should govern its regulatory approach.”

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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.”

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The Environmental Protection Agency’s Environmental Appeals Board (EAB) heard oral arguments this morning in a precedent-setting case that will determine whether EPA is required to consider emissions limitations on CO2 as part of the permitting process for coal-fired power plants and other emitters of greenhouse gases. The case of In re Deseret Power Electric Cooperative, which challenges EPA’s refusal to use its permitting authority under the Clean Air Act (CAA) to impose on controls on CO2 emissions from a proposed Utah waste-coal fired power plant, will impact dozens of challenges to coal-fired power plant permits pending in state agencies and appeals boards throughout the country.

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In a show of the increasing influence of climate change concerns at the state level, the Kansas legislature failed yesterday to override Governor Kathleen Seblius’ veto of a bill that would have opened the door for expansion of Sunflower Electric Power Corp’s (“Sunflower”) coal-fired power plant in Holcomb, Kansas. Although the Kansas Senate easily approved the veto override by a vote of 32 to 7, the House fell four votes short.

Legislative leaders who supported the project told Sebelius last week to accept a compromise that would reduce the size of the project from 1,400 megawatts to 1,200 megawatts, or face a veto override. Sebelius, who had already vetoed the 1,400 megawatt power plant and proposed a single 660 megawatt facility, rejected the proposal, citing concerns over projected emissions of 11 million tons of carbon dioxide annually.

The showdown between Sebelius and the legislature resulted from a decision by Kansas Secretary of Health and Environment Rod Bremby last October to deny an air-quality permit for Sunflower on climate change grounds. Legislators argued that the decision to hold up the project would damage Kansas’ business climate and result in higher costs for electricity.

Environmental groups have filed an administrative challenge to a state permit issued to Duke Energy Corporation for a proposed $2.4 billion expansion of its Cliffside, N.C., coal-fired power plant. The contested case petition, filed on March 27, alleges that the North Carolina Division of Air Quality’s (NCDAQ) permit violates state and federal clean air standards for a list of air pollutants, including carbon dioxide (CO2).

Southern Environmental Law Center (SELC), which brought the petition on behalf of a number of federal and regional environmental groups, argues that the Clean Air Act’s (CAA) Prevention of Significant Deterioration (PSD) provisions require NCDAQ to apply the Best Available Control Technology (BACT) for carbon dioxide. SELC grounds its argument in the premise that CO2 is “subject to regulation” under the CAA — a premise that is not accepted by the Environmental Protection Agency (EPA) and is currently being litigated before the EPA’s Environmental Appeals Board in the In re Deseret Power Electric Cooperative case.

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This post is the second part of a two part series analyzing challenges to coal-fired power plant permits under federal statutes.

Challenges to coal-fired power plants under the National Environmental Policy Act (NEPA) may not be as standard as those under the Clean Air Act, but their impact will be no less substantial. Lawsuits challenging permitting of coal-fired power plants under NEPA will, by their very nature, be limited because NEPA challenges require a “major” federal action that significantly affects the quality of the human environment – for example, a funding decision or a permit approval. While the cases may impact a small number of coal-fired power plants, the outcomes will have far-reaching consequences on any private project with greenhouse gas (GHG) emissions that requires federal approvals.

To date, there have been only two lawsuits filed challenging coal-fired power plant approvals under NEPA. Both cases involve loans and other approvals provided by the Rural Utilities Service (RUS), a Depression-era agency created to bring electricity to farming communities. The Sierra Club and local environmental groups argue that RUS’ Environmental Impact Statement (EIS) for the Highwood generating plant near Great Falls, Montana, failed to disclose the project’s carbon emissions and discuss the impacts of those emissions on climate change.

The second case, which involves the Sunflower Electric Corporation’s proposed expansion of its facility in Holcomb, Kansas, alleges failure to undertake an EIS to analyze global warming impacts (among other things), prior to approving alleged construction loans and other financing at the site. The Sunflower case – which also is in litigation over the Kansas Department of Health and Environment’s rejection of its permit on global warming grounds – involves a limited federal handle and defendants certainly will raise objections to Sierra Club’s characterization of RUS’ approvals as a “major” federal action.

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