Climate and energy

The math isn’t tough – we started out with six lawsuits, went down to four, then up one.

Total Sunflower Electric-related lawsuits in the courts, as of today (I think):

Five.

Here (again, I think) is how it happened. Reminder: The suits all essentially challenge KDHE’s 2007 decision to deny Sunflower an air permit for a 1,400 megawatt coal-fired electrical generation plant.

The 1,400 megawatt plant would have emitted more than eleven million tons of carbon dioxide per year, or more than twice as much CO2 as emitted from all the cars in Kansas. Carbon dioxide is a pollutant, and a major greenhouse gas contributing to global warming.

Last week, a district court judge in Finney County dismissed the two suits that Sunflower and its allies had filed there, due to lack of jurisdiction. A 2006 state law says that a challenge to the denial of an air-quality permit must go through the state Court of Appeals, and bypass district courts. Sunflower did not contest the dismissal of its suits.

All of the plaintiffs involved (it appears) – Sunflower, Tri-State Generation (the Colorado utility that is its partner in the venture), Finney County Commission, and the Garden City Area Chamber of Commerce – are still part of the suits before the Court of Appeals.

Sierra Club is also planning to intervene in the appellate court lawsuits. These suits will most likely be resolved by the Kansas Supreme Court.

That’s the two down. Now, the one up – Sierra Club has successfully brought suit against the RUS, the USDA program that uses taxpayer dollars to finance the building of coal plants. A federal district court judge just refused the federal government’s motion to dismiss the case.

The RUS had already indefinitely suspended funding for future projects, and it is not directly funding the new proposed Sunflower plants. However, since Sunflower still owes the RUS about $342 million for the first Holcomb plant (built in the 1980s), RUS was required to give its approval to the new project before Sunflower could seek financing (Salina Journal).

If the RUS revokes its approval, then this will probably change the financing picture for Sunflower Electric. (To my knowledge, Sunflower is not at this point directly engaged in Sierra Club v. RUS.)

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None of these legal challenges will likely be resolved by the next legislative session, which begins in early 2009. All of the seats in the Kansas House and Senate are currently up for re-election In November.

Energy will play a major part in some of these races, but in others maybe not. Some of the most significant Sunflower supporters are also running unopposed.

The Sunflower plants will likely return to the legislature in the next session. They will compete with a crowded slate of issues – a great deal of state business was put on hold during the last session, while energy was devoted to the coal legislation instead.

Likewise, the state faces a fairly brutal budget situation for next year (although still better than many states in the nation).

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Quick review – the Kansas coal controversy has ended up back in the courts because supporters of Sunflower Electric lost their battle in the legislature, failing to come up with the necessary votes to override vetoes of three separate coal bills.

The issue ended up in the legislature because Sunflower did not want to wait on the outcome of the legal challenges it had filed against KDHE’s decision.

Other related factors: In Massachusetts v. EPA (2007), the U.S. Supreme Court found that carbon dioxide is a pollutant that can be regulated under the Clean Air Act. KDHE Secretary Rod Bremby cited this decision as the basis for denying the Sunflower air permit.

The Supreme Court also instructed the EPA to begin a rules and regulations process. However, the EPA has basically punted on this until the next presidential administration. This has left carbon regulation at the federal level in limbo for now. Both presidential candidates support some form of carbon regulation.

Just recently, a Georgia state court also invalidated an air permit for 1,200-megawatt coal-fired power plant because its developers had not considered carbon dioxide emissions. The court decision also cited Mass v. EPA.

In the meantime, coal plant construction costs continue to rise (as do construction costs for all forms of energy production, due to the current commodities bubble).

For example, KCPL’s new Iatan 2 power plant will cost almost $2 billion, a 15 percent increase from two years ago and 47 percent higher than the original $1.3 billion price tag. Costs increases are similar across the industry (Red Orbit).

Sunflower Electric’s original estimate for its plants was $3.2 billion. That cost has not been recently updated.

— Maril Hazlett, www.climateandenergy.org