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Posted on Fri, Sep. 28, 2007
By KAREN DILLON and DAVID KLEPPER
The Kansas City Star
AG Opinion Gives Hope to Kansas Power Plant Opponents
A Kansas attorney general's legal opinion has given opponents of two proposed coal-fired power plants new hope that a permit allowing construction will be denied.
Attorney General Paul Morrison concluded that the state's top health regulator can reject an application to build the plants, even if they meet all state and federal environmental regulations.
Previously, Gov. Kathleen Sebelius and officials with the Kansas Department of Health and Environment had indicated that the decision to grant or deny the permit must be based solely on meeting environmental regulations.
Morrison's opinion seemingly gives the Health and Environment Department wide discretion to deny Sunflower Electric Power Corp.'s permit application because of concerns about unregulated carbon emissions.
Sunflower plans to build two 700-megawatt coal-fired generators near an existing plant at Holcomb, Kan. The plants would serve mostly out-of-state customers.
Conservation groups strongly oppose the plants, contending that carbon emissions would add to global warming and that pollutants would damage the environment and public health. They have long argued that the department and Sebelius have the authority to reject the plants, even if they meet minimum requirements.
Morrison's opinion indicates that the department may reject the permit so long as regulators make a 'factual determination' that a plant poses a threat.
State law, according to Morrison's opinion, "authorizes the secretary to take actions as necessary to protect the health of persons or the environment. Such actions may include denying an air quality permit application on the basis of anticipated emissions of a particular pollutant."
Sebelius' office issued a statement saying the opinion doesn't affect the governor's intention to leave the decision to Rod Bremby, secretary of health and environment. Though Bremby is a Sebelius Cabinet member, Sebelius has said she would not pressure him to reject the proposed plant. She has come under fire from conservation groups for not doing anything to stop the plant.
"This opinion applies only to the powers granted to the Secretary of KDHE and clarifies the parameters in which the Secretary has to make his decision," read the statement from Sebelius. "There is no reference to the powers of the Governor in the statute, nor in the opinion."
Sunflower disagrees with Morrison's opinion and thinks it shouldn't be held accountable for unregulated emissions like carbon dioxide, according to spokesman Steve Miller. Miller said the company thinks the permit process should be based on the applicant's adherence to existing environmental regulations. He called Morrison's opinion -just one lawyer's opinion.
"I can't imagine why the secretary would have any legal reason not to issue the permit," Miller said. "When and if the congress and the state decides to regulate it (carbon emissions), we will be more than happy to comply."
Meanwhile, Republican lawmakers continue to push for the approval of the plant.
Legislative leaders who support the plant want to know why the department is taking so long to make a decision. Senate President Steve Morris, a Hugoton Republican, called a meeting of legislative leaders for Wednesday to discuss creating a committee to investigate the delay.
Sunflower submitted its application more than a year ago, and Miller said the delay is hurting the project.
"Every day that goes by, the cost of new power plants gets higher and higher," Miller said. "We just need to get it done."
Forty Republican state lawmakers sent a letter to Bremby this week urging him to approve the permit. Five additional Republicans joined them with an additional statement of support Friday, calling the plant a 'win-win' for Kansas.
They argue that the plant would create jobs in a struggling part of the state and that environmental fears are unwarranted.
Health and Environment Department officials have said the long process was necessary to fully review the application. A decision is expected sometime this fall.
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