The Environmental Protection Agency’s Environmental Appeals Board (EAB) declined to hear a Clean Air Act (CAA) challenge to a permit issued for construction of a coal-fired electric generating plant near Springfield, Illinois, on grounds the petitioners failed to properly raise their climate change arguments during public comment on the draft permit. Although the EAB did not reach the merits of the petitioners’ argument that the failure to include Best Available Control Technology (BACT) for CO2 violates the CAA, the Board did note that the issue “remains a matter of considerable dispute.”

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

Lawsuits challenging coal-fired power plant permits from Oregon to Georgia have the potential to shape the regulatory future of industries that emit large quantities of greenhouse gases. These lawsuits are taking aim at power plants under two statutes: the Clean Air Act (CAA) and the National Environmental Policy Act (NEPA). Although these cases are in the early stages, the issues raised offer insight into what regulatory requirements will look like in a carbon-constrained world.

This post reviews the two CAA petitions filed before the Environmental Protection Agency’s appeals board challenging permitting of coal-fired power plants in Utah and Illinois, with plaintiffs’ groups vowing to challenge on CAA grounds permitting decisions by state boards in Georgia, Arkansas, Montana, and Oregon.

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For further information about this topic, please contact Akin Gump.