Climate and energy

Reprinted from Harris News:

Sunflower case could be headed for high court

By Chris Green

TOPEKA — A hearing officer has cleared the way for the state’s highest court to rule on whether two coal-fired power plants should be built in southwest Kansas.

The Kansas Office of Administrative Hearings upheld on Wednesday a state regulator’s denial of the air-quality permits sought by Hays-based Sunflower Electric Power Corp. for its Holcomb expansion project.

Health and Environment Secretary Rod Bremby blocked the plants in October 2007 over concerns that their carbon dioxide emissions would exacerbate global warming.

In a news release issued Thursday, the Kansas Department of Health and Environment said the decision affirmed that Bremby had acted within his authority in nixing the twin 700 megawatt generators.

“The matter will ultimately be decided by the Kansas Supreme Court,” agency officials said in the release.

The parties in the case do have 15 days to request that Bremby review the hearing’s officer ruling, which would effectively have the secretary revisiting his own decision.

Sunflower Electric officials said they hoped Wednesday’s administrative ruling would allow their stalled legal challenge of Bremby’s decision to quickly come before high court justices.

The rural electric cooperative has filed lawsuits in both the state and federal court systems hoping to overturn Bremby’s ruling, as well as its challenge through the state’s internal process for reviewing the application of administrative regulations.

Sunflower claims that the secretary overstepped his authority in denying the permits because there are no state or federal rules limiting CO2.

Bremby relied on a legal opinion from the state attorney general’s office saying he could deny permits for the plants over health or environmental concerns, even in the absence of federal regulations.

Speedy resolution?

In April, the Supreme Court suspended its review of the Sunflower lawsuit, saying the cooperative must exhaust its legal remedies in district court and through the administrative hearing process first.

“Hopefully, with the decision of the OAH in place, the Supreme Court will now lift the stay an take up the case in an expeditious manner,” utility officials said in a written statement. “Every day the project is delayed, Kansans are denied thousands of jobs, affordable energy rates are jeopardized, and future energy reliability is threatened.”

Carol Green, the clerk of the Kansas Supreme Court, said it’s unclear when justices might revisit Sunflower case.

Sunflower filed a motion to lift the high court’s stay in October but the court has yet to rule on that request. Green said the court could await filings related to the hearing officer’s decision before moving forward.

While ruling in Bremby’s favor Thursday, the state’s hearing officer wrote that he couldn’t overturn KDHE’s decision unless the agency’s interpretations of its own regulations were “clearly erroneous or inconsistent.”

“The Presiding Officer in an administrative action is not in a position to substitute their opinion for that of the agency,” hearing officer Tracy Diel wrote. “That is the realm of the appellate courts.”

But Stephanie Cole, a spokeswoman for the Kansas Sierra Club, said the decision still put Kansans “a step closer to avoiding the harm that would result from Sunflower’s massive, polluting coal-plant expansion.”

Environmentalists oppose the plants because they’re concerned about the 11 millions tons of CO2 the plant would emit. Scientists have found that greenhouse gas is most responsible for global warming.

“The Kansas Supreme Court will have the final word, and we plan to ask the court to reach the same conclusion as the administrative officer,” said Nick Persampieri, an Earthjustice attorney who represents the Sierra Club.

Sunflower’s case would come to the state Supreme Court after a protracted battle over the plants during last spring’s legislative session.

Lawmakers who supported the project failed to override Gov. Kathleen Sebelius’ vetoes of bills that would have forced Bremby to allow the plants.

Proponents consider the $3.6 billion project to be crucial for economic development in Kansas. Critics have worried about the plants’ greenhouse gas emissions and the fact they would be sending about 85 percent of the power they produce outside the state.

Sunflower wants to sell power from the plants to two out-of-state utilities, Tri-State Generation and Transmission Association of Colorado and Golden Spread Electric Cooperative in Texas.