By H. JOSEF HEBERT –
Associated Press, 15 November 2008
WASHINGTON (AP) — The Environmental Protection Agency has been blocked from issuing a permit for a proposed Utah coal plant without addressing global warming, jeopardizing the fate of scores of other proposed coal plants that will likely be left to the Obama administration.
An EPA appeals panel ruled Thursday that the agency's regional office didn't adequately support its decision to issue a permit for the Bonanza coal burning power plant in Utah without requiring controls on carbon dioxide, the leading greenhouse gas.
The panel threw the issue back to the EPA regional office in Denver and said it must more adequately explain why it did not require limits on carbon dioxide, calling it "an issue of national scope that has implications far beyond this individual permitting process."
EPA spokesman Jonathan Shrader said, "We are reviewing the (appeals panel) decision and will be determining steps forward." He declined to say how many other coal plant permits might be affected.
But environmentalist as well as lawyers representing industry groups says the decision by the appeals panel, which traditionally gives great deference to the agency's decisions, stops the permitting of perhaps as many as 100 coal plants.
"In essence this is a punt to the Obama administration ... All permits in the pipeline are now stymied," said Jason Hutt, an attorney representing a number of utilities, merchant energy developers and refineries seeking permits. He said it also would affect permits for oil refinery expansion.
David Bookbinder, an attorney for the Sierra Club, which had appealed the EPA Bonzana permit, said it will "stop permitting of any coal burning power plants "while EPA mulls over what to do next" about how the federal Clean Air Act is to be used to control carbon dioxide, a product of burning fossil fuels and a leading culprit in global warming.
"And that will be decided by the next administration," added Bookbinder.
Bookbinder, based in Washington, had led the Sierra Club's efforts to block the attempt by six electric cooperatives to build a second coal-burning generating unit at the Bonanza facility on the Uintah and Ouray Indian reservation in Utah, knowing a decision there on carbon dioxide could have broad implications.
He said as many as 100 coal power plant permits — both those in process and others under appeal — will now be decided by the EPA, or state agencies that closely follow EPA's direction, after the Bush administration leave office.
Bush has made clear that he believes the Clean Air should not be used, in permitting new plants, to control greenhouse gases. It's not yet clear how the Obama administration will address regulating carbon dioxide. The Supreme Court has told the EPA it must decide on whether carbon dioxide endangers public health and welfare, and if it does it must be regulated.
Michael Gerrard, an attorney not involved in the Bonanza case and author of "Global Climate Change and the Law," said the EPA appeals panel decision "will embolden the lawsuits" challenging construction of new power plants based on their impact on climate.
"It means that the appeals board recognizes that carbon dioxide regulation of power plants is a very live and open issue. It does not ban them. It puts a cloud over them, by making it clear that this is a real issue," Gerrard said in an interview.
The Utah case has attracted wide interest because of its broader implications.
Among those who had filed briefs with the EPA's appeals panel, arguing the permit should be upheld, were the American Petroleum Institute, U.S. Chamber of Commerce, the American Chemistry Council and the National Association of Manufacturers.
Associated Press writer Dina Cappiello contributed to this story.