Kansas Court Dismisses Lawsuits Supportive of Proposed Coal-Fired Power Plant

July 18, 2007
by BART CASSIDY
MGKF News Flash

Faced with the denial of its request for an air quality permit for two coal-fired generators at an existing power plant in western Kansas, Sunflower Electric Power Corporation ("Sunflower") has challenged a decision of the Kansas Department of Health and Environment ("KDHE") on multiple fronts. KDHE had justified its decision to deny the permit application, in part, on the basis that the two 700 MW generating units would produce approximately 11 million tons of greenhouse gas emissions per year. As in many states, greenhouse gases are not specifically identified within the Kansas regulations as regulated pollutants, but KDHE contends that it has broad statutory authority to regulate these emissions.

In addition to pursuing administrative challenges of the permit denial, Sunflower also filed lawsuits in state courts. In one such action, Sunflower sought review by the state district court of its claim that KDHE had relied upon its statutory authority to take emergency action to protect health and the environment as a basis to deny the permit. However, the District Court granted KDHE's motion to dismiss these claims on the ground that Sunflower's appeal belonged, in the first instance, within the administrative review process.

Because Kansas' decision to deny the permit of the coal-fired electric generators relies in significant part upon greenhouse gas emission considerations, and further because that state's regulatory program does not specifically address such pollutants, these proceedings have garnered national attention as both proponents and opponents of coal-fired electric generation evaluate the potential implications of greenhouse gas consideration for facility permitting and construction.