Climate and energy

Legal eagles, listen up. As reported by the AP, the Kansas Supreme Court has just decided to put the three Sunflower Electric cases before it on hold, until the cases are heard by the KDHE and the district court.

Huh what?

OK. Last October, when KDHE Secretary Bremby denied the air permit for Sunflower Electric to build the Holcomb coal-fired power plants, several court cases then were filed. The newspaper reports from then are a bit contradictory with today’s regarding exactly who filed what, where - but. Near as I can tell (and don’t take it for gospel):

(1) Sunflower and Tri-State Generation filed in Finney County district court (the proposed location of the plants).
(2) Sunflower, Tri-State Generation, and the Finney County Commission (and possibly also the Garden City Chamber of Commerce) all filed separately with the state appeals court to appeal the KDHE’s ruling.

At the end of November, the Supreme Court agreed to hear the latter three cases. They did not set a date.

In early February, Sunflower Electric and their supporters then began a battle in the legislature for the air permit.

During the hearings on the coal bills, many expressed concerns about the ongoing nature of the judicial review and the legislative process. Environmental and administrative law expert Karl Brooks submitted testimony on this issue.

Later, the Wichita Eagle published a piece that Brooks wrote on the same topic, titled “Coal Plant Bills Play Politics with the Law.” Which I can’t link to, because it is now electronically locked into the archive section of the Eagle…. wait! Checked my files, I actually had a text copy, woohoo.

To read it, please click below on “read the rest of this entry.” Especially if you aren’t sure about the constitutional issues that can arise from these cases, it’s a good introduction.

— Maril Hazlett, www.climateandenergy.org

Coal Plant Bills Play Politics with the Law

By Karl Brooks

Imagine a Kansas where Texans, financed by Wall Street investment banks, ignored state hazardous waste disposal rules while incinerating medical waste. Confident their Topeka lobbyists could work a bill through the Legislature any time the rules impeded their business, the fast-buck polluters happily opened new incinerators from Goodland to Garnett.

Imagine a Kansas where citizens aggrieved by medical-waste pollution sued the incinerators, and a judge and jury ruled the facts and law entitled them to compensation for impaired health and devalued property. Confident their statehouse friends understood the price of loyalty, the polluters simply got the Legislature to pass a bill overturning the court’s decision.

Legislative politics today make this imagined Kansas too close for comfort.

Bills now in the Legislature give Sunflower Power Co. a permit to pollute Kansas air. One company, throwing around money and clout to get its own way, unbalances our legal system by encouraging other powerful interests to play politics with law.

The current fracas in Topeka is about Sunflower’s proposed coal-burning plants. But if this company gets what it wants, political influence could menace all Kansans’ constitutional rights.

Kansans have long relied on a balanced legal system of statute laws, administrative rules and judicial decisions. What lawyers call “administrative law” safeguards our health, conserves our natural resources and educates our children.

A quick look at administrative law shows why Sunflower’s bid to throw its political weight around by rewriting agency rules and cutting out the courts sets a bad example for the future.

All three co-equal branches of government, working together, make administrative law. Kansas’ Constitution empowers elected legislators to make broad policy decisions by enacting statutes. Elected governors then appoint expert administrators to enforce those laws by making rules. And our constitution protects our rights by assigning independent judges to decide disputes about the statutes and rules.

Kansas politicians of both parties have worked with Kansas attorneys to build a model administrative-law system that balances public opinion, expert enforcement and impartial justice. Sunflower’s special-interest bills erode this well-settled bipartisan balance by giving one branch of government — the Legislature — more authority.

Sunflower’s coal plant bills would interfere with the orderly enforcement of the Air Quality Act by the Kansas Department of Health and Environment and the attorney general.

Sunflower’s bills would interfere with the impartial administration of justice by short-circuiting numerous court cases testing KDHE’s interpretation of the federal Clean Air Act.

Sunflower’s bills would upset the balance of constitutional power. They would replace precedent with politics. Making the Legislature supreme over the executive branch and the courts encourages future polluters to buy their way past inconvenient laws, enforced by expert civil servants and interpreted by thoughtful judges.

Karl Brooks teaches history and law at the University of Kansas.