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Kansas Supreme Court reverses permit granted to Sunflower coal plant

The Kansas City Star

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In a ruling Friday, the Kansas Supreme Court cast a cloud over the future of the proposed Sunflower power plant in western Kansas.

The court’s unanimous ruling reversed a state agency’s decision to grant a permit to the Sunflower Electric Power Corp. in December 2010 and remanded it back to the agency for reconsideration.

The Kansas Department of Health and Environment failed to require the new plant to meet stricter federal air emission standards that the Environmental Protection Agency had imposed before the permit was issued for the new plant, according to the court decision.

The ruling is a major setback to the years-long battle waged by the utility — with strong backing by the state Legislature — to build the plant near Holcomb, Kan.

KDHE could grant a new permit, but Friday’s ruling probably increases the cost of a new plant because the agency must consider the tougher clean-air laws put in place since 2010. The plant had been projected to cost $3 billion.

The justices wrote that the Sierra Club, the environmental group that brought the lawsuit, had established that “KDHE had erroneously interpreted and applied” state and federal clean-air laws during the permitting process.

“The court is sending a strong signal back to KDHE and obviously Sunflower that the way this was done was inappropriate and incompetent,” said Bill Griffith, energy chairman for the Kansas chapter of the Sierra Club.

KDHE on Friday offered a short comment about the 76-page ruling.

“KDHE is reviewing the Kansas Supreme Court decision to determine what impact it has on the air construction permit going forward,” an official wrote in an email.

Sunflower officials said Friday that they were still determined to build.

“Sunflower will continue to take the steps necessary to preserve and advance the project, which is one of many resources under consideration to meet the long-term power needs of our member co-ops,” the utility said.

Amanda Goodin, one of Sierra Club’s attorneys with the Earthjustice law firm, said the court’s ruling meant Sunflower would have to start its permit application from scratch, perhaps with a new design to address more stringent air regulations.

There have been several tougher regulations since 2010 as President Barack Obama’s administration has cracked down on global warming pollutants. In addition, this past summer the EPA issued draft regulations that once implemented, possibly in the next few months, would affect future permits for new coal plants.

Those new regulations could doom the construction of any new coal plants in the United States, some experts say.

Brian McNicoll, senior communications director at the Competitive Enterprise Institute, which advocates limited government, said experts at his think tank believe that if the new regulations are implemented, no one will be able to build a plant because the technology needed to lower emissions to new levels doesn’t yet exist.

“It is a difficult time for coal plants,” McNicoll said. “If they finalize the regulations, it will be impossible to build any new coal plants.”

Even if there were no new regulations, some experts say few if any coal plants are scheduled to be built in the next several years.

The ruling did not say KDHE itself had violated any laws in its handling of the permit.

“I think the court was trying to say KDHE wasn’t acting maliciously,” Goodin said. “So I think they are trying to say the agency wasn’t willfully wrong, but they certainly made clear this permit violated the law and that KDHE has to apply the most protective health standards out there.”

The coal plant has been divisive since Sunflower announced in 2006 that it planned to build three coal plants alongside an existing unit. That proposal was later downsized to one new plant.

In a major decision in 2007, KDHE recommended the air permit be issued, but KDHE Secretary Rodney Bremby denied it over concerns about the level of greenhouse gases that would be emitted.

After the decision, Kansans for Affordable Energy ran a newspaper ad that featured photos of Vladimir Putin, Hugo Chávez and Mahmoud Ahmadinejad and said the decision by Gov. Kathleen Sebelius’ administration meant more natural gas would be imported from those countries.

Over the next couple of years, Sebelius vetoed four bills that would have permitted the plant to be built.

After Sebelius left office, her successor, Gov. Mark Parkinson, entered into a settlement agreement soon after taking office. The agreement allowed KDHE to reconsider Sunflower’s permit application but reduced the size of the plant to 895 megawatts and required Sunflower to dismiss a federal lawsuit.

In November 2010, Parkinson fired Bremby while the new permitting process was underway.

In mid December 2010, KDHE issued the permit.

John Mitchell, acting KDHE secretary, was asked at a news conference how the permit could protect public health if it did not address certain greenhouse gases. Mitchell responded that KDHE staff did not address those emissions as state law did not require it.

During the permitting process, The Star reported in 2011, Sunflower officials and KDHE regulators had a cozy relationship and Sunflower was writing many of the responses to public comments that KDHE received from individuals and organizations. KDHE used the Sunflower responses as its own.

The newspaper also reported that KDHE employees had worked overtime on weekdays and weekends to hurry the permit to beat new federal air regulations that would be implemented in January 2011.

The Sierra Club filed its lawsuit in 2011.

To reach Karen Dillon, call 816-234-4430 or send email to kdillon@kcstar.com.

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