Hill Heat

From the Wonk Room.

In a landmark victory in the battle to regulate global warming pollution, a Georgia judge ruled that a proposed coal-fired plant could not be built unless its carbon dioxide emissions are limited, effectively killing the project. The ruling is the first to apply the Supreme Court’s Massachusetts vs. EPA decision to the question of greenhouse gas pollution from power plants. According to GreenLaw, the Georgia environmental organization who filed suit with the Friends of the Chattahoochee and the Sierra Club in June 2007, Fulton County Superior Court Judge Thelma Moore’s decision “goes a long way toward protecting the right of Georgians to breathe clean air.”

The decision overturns an administrative court’s ruling that affirmed the state Environmental Protection Division’s (EPD) decision to issue an air pollution permit for Dynegy’s Longleaf plant. In practical terms, Dynegy cannot begin construction of the plant unless it can obtain a valid permit from EPD that complies with the Court’s ruling. The Judge held that EPD must limit the amount of carbon dioxide (CO2) emissions from the plant, a decision that will have far-reaching implications nationwide; this is the first time since the April 2, 2007, Supreme Court decision requiring the Environmental Protection Agency to regulate CO2 that a court has applied that standard to CO2 from an industrial source rather than from motor vehicles.

The $2 billion, 1200 megawatt plant – the first proposed in Georgia in over 20 years – was to be built by Dynegy Inc., the Houston-based energy company with several other proposed coal-fired power plants across the country. Dynegy and other fossil fuel polluters have been scrambling to get new plants started in anticipation of future limits on greenhouse gases, before investors and ratepayers recognize the risk.

Last October, the Kansas Department of Health denied air quality permits to a proposed coal plant expansion because of the danger greenhouse gas emissions pose to the climate. Gov. Kathleen Sebelius (D-KS) vetoed repeated attempts by the legislature to override the decision.

In contrast, officials recently appointed by Gov. Timothy Kaine (D-VA) to the Virginia Air Pollution Control Board unanimously granted air quality permits to Dominion Resources for a $1.8 billion coal-fired plant last week.

The court decision unequivocally rules that carbon dioxide must be regulated:

Faced with the ruling in Massachusetts that CO₂ is an “air pollutant” under the Act, Respondents are forced to argue that CO₂ is still not a “pollutant subject to regulation under the Act.” Respondents’ position is untenable. Putting aside the argument that any substance that falls within the statutory definition of “air pollutant” may be “subject to” regulation under the Act, there is no question that CO₂ is “subject to regulation under the Act.”