TOPEKA, Kan.—Sunflower Electric Power Corp. filed a pair of lawsuits Friday seeking to overturn the state’s top environmental regulator’s denial of an air-quality permit for two proposed coal-fired power plants in southwest Kansas.
Sunflower filed one lawsuit in the Kansas Court of Appeals and another in Finney County District Court. Both address the decision by Rod Bremby, Kansas’ secretary of health and environment, to deny the permit for the $3.6 billion project. It asks the Court of Appeals to order Bremby to issue the permit.
Bremby rejected the permit on Oct. 18, citing the plants’ potential carbon dioxide emissions. Many scientists consider CO2 a major contributor to global warming, but the state doesn’t regulate carbon dioxide emissions.
“We firmly believe the secretary’s decision was wrong as a matter of law and we are confident that the courts will overturn this arbitrary and capricious decision,” said Mark Calcara, Sunflower vice president and general counsel. “Our legal position, as well as our project, stands on its own merits.”
Kansas Department of Health and Environment spokesman Joe Blubaugh said the agency had no comment on the filings.
“Until our legal team has briefed our executive staff, it is probably premature to comment,” he said.
Similar lawsuits also were filed Friday by Tri-State Generation and Transmission Association Inc., of Westminister, Colo., the Finney County Commission and Garden City Chamber of Commerce, said Sunflower spokesman Steve Miller.
Tri-State and Golden Spread Electric Cooperative, in Amarillo, Texas, are partners with Sunflower in the project. Tri-State sells power to 44 electric cooperatives in Colorado, New Mexico, Wyoming and Nebraska,
Much of the power from the plants would be exported to Colorado, Oklahoma and Texas.
“They are raising the same legal points. All are trying in the end to overturn Secretary Bremby’s decision,” Miller said.
In Sunflower’s Court of Appeals lawsuit, a major argument was that Bremby had no authority under state law to reject the permit. It said the statute in question provides the secretary with “certain emergency powers to address emissions of an air contaminant or contaminants from existing sources” rather than prospective air emissions.
Bremby denied the permit over concerns about potential CO2. Attorney General Paul Morrison advised Bremby in September that state law gave him the authority to declare a pollutant a health or environmental hazard and deny a permit.
In the district court filing, Sunflower argued that the denial order improperly and without support of law denied it the right to construct the power plants.
But Bob Eye, a Topeka attorney for the Sierra Club, said, “The statute is unambiguous in its grant of authority to the secretary to do precisely what he did in this case. That statute compels him to do what he did.”
He said the Sierra Club “will work hard to protect that decision. We will certainly review what has been filed and determine what the next step is to be.”
Critics have suggested Bremby’s decision represents the first step toward emissions controls that could hurt the western Kansas economy. The decision upset several legislative leaders, including Senate President Steve Morris.
“I think we always assumed they would go through the courts, which will take time, and that is why the Legislature will be taking a look at the regulatory process,” said Morris, a Republican from Hugoton.
Hays-based Sunflower officials already had filed an appeal with KDHE asking Bremby to reverse his decision and to hold public hearings for more discussion.
Miller said Sunflower moved forward with the KDHE appeal because attorneys felt the statute wasn’t clear about the deadline for filing a lawsuit.
“They wanted to make sure they didn’t fail to meet a deadline,” he said.
The two, 700-megawatt plants Sunflower wants to build would be next to its existing 360-megawatt coal-fired plant outside Holcomb. As part of the project, it would build a bioenergy center to capture CO2 and use it to grow algae that can be converted to biofuels.
Sunflower estimated the bioenergy center would have cut the coal plants’ carbon dioxide emissions from 11 million tons a year to 3.6 million tons. In his decision, Bremby said he was encouraged by Sunflower’s plans for the center but said that nothing in the permit application would have guaranteed its construction.
Many environmentalists say the technology is too experimental for the state to count upon it to reduce CO2.
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