For the first time a court has revoked a permit due to concerns over C02 emissions and climate change. While there have been previous instances where states have denied permits due to concerns with C02 emissions, this is the first time a court has revoked a previously issued permit. Notably, the Court did not base its decision on state law, rather it ruled the Clean Air Act (CAA) requires analysis and control of C02 emissions.
Other courts are currently hearing similar challenges. If this decision is a trend it will have major implications for any new facilities seeking an air permit. In a future blog post I will discuss the implications of using the Clean Air Act, specifically the New Source Review provisions, to regulate CO2. Much speculation has been made as to whether CO2 will be regulated even without action by Congress on comprehensive climate change legislation.
The CO2 decision was issued on June 20, 2008 in Georgia’s Fulton County Superior Court. The Georgia Environmental Protection Division had approved a permit for the construction of a proposed 1200-megawatt coal-fired power plant. Environmental groups, including the Sierra Club, challenged the permit saying the plant’s emission of 8-9 million tons of CO2 had to be considered. Siding with the Sierra Club, the Court overturned the State’s issuance and sent the permit back to perform the analysis it said was required under the CAA.
Note: According to Sourcewatch, between 2007 and 2008, plans for 69 coal plants have been canceled.
The Clean Air Act requires major new sources of air pollution to install the best available pollution control technology (BACT) to reduce pollutants regulated by the Act. The parties agreed that CO2 was not evaluated as a pollutant under the BACT analysis performed by the Georgia Environmental Protection Division. Longleaf Energy defended its permit by arguing that CO2 was not a pollutant "controlled or limited" by the Clean Air Act. The Company also argued the U.S. Supreme Court’s decision in Massachusetts v. EPA was not controlling because the Court only found CO2 to be a pollutant, it did not determine it was a "regulated pollutant" under the Act.
The Court rejected the arguments raised by Longleaf stating the BACT provisions of the Clean Air Act were broader "encompassing all pollutants that are subject to regulation under the Act, whether or not they are independently subject to NAAQS [federal air quality standards] or other general limits." The Court found that the Supreme Court in Massachusetts v EPA did determine CO2 was a "pollutant subject to regulation."