AIR POLLUTION:

Court weighs EPA role in approval of Ky. power plants

A federal appeals court today heard arguments over whether an environmental group can sue over U.S. EPA's failure to intervene to prevent the construction of three power plants in Kentucky.

The Sierra Club and Valley Watch filed a citizen suit against EPA in 2009 alleging that it was required to act because at the time the plants were approved, Kentucky's state implementation plan for the agency's permitting program had not been updated in accordance with national standards (Greemwire, Nov. 11, 2009).

The three proposed plants are the Kentucky NewGas Synthetic Natural Gas Production Plant, the Cash Creek Coal-Gasification Station and the J.K. Smith Generating Station. Since the suit was filed, the Smith plant's operators have withdrawn from the permitting process.

It's not clear based on the argument which way the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit will rule.

It's possible the court could conclude that EPA is required to do something in such circumstances but has the option of making a conscious decision not to stop a project from going ahead.

Under the Kentucky regulations, proposed plants that would emit nitrogen oxides would still not be considered "major emitting facilities" as part of the permitting process, despite EPA National Ambient Air Quality standards stating that they should be.

The regulations have since been updated and were approved by EPA in a final rule that went into effect in October 2010. The concerns raised by the Sierra Club were also reflected in the permits Kentucky issued for the two plants that are still due to be constructed.

Chief Judge David Sentelle appeared concerned about how courts should insert themselves into the process if EPA opted not to act.

He asked the environmental groups' attorney, Robert Ukeiley, whether if EPA simply decided it didn't wish to intervene, "wouldn't that be the end of the game?"

Sentelle also noted that other statutes that impose mandatory duties on government agencies sometimes contain a "laundry list" of options for courts to consider. The Clean Air Act does not offer courts any guidance on that point, he added.

EPA maintains that the Clean Air Act gives it discretion on whether to intervene in such matters. The provision of the Clean AIr Act that authorizes citizen suits clearly states that actions can only be brought when the agency fails to act under any provision of the act "which is not discretionary," the agency's lawyers noted in their brief.

The U.S. district court judge who handled the case agreed and dismissed the complaint.

The agency also maintains that the issue is largely moot because Kentucky updated its state implementation plan and the Smith plant is no longer part of the process.

Addressing the merits, Justice Department attorney John Arbab said a phrase in the Clean Air Act stating that the EPA administrator should intervene "as necessary" gives the agency the option not to get involved.

Sentelle disputed that point.

"It doesn't necessarily mean there's no mandatory duty," he said.

The case argued today focuses on one of several grounds on which environmentalists have challenged the construction of the plants (Greenwire, June 17, 2010).