Georgia Supreme Court Won't Hear Case Over Coal-Fired Plant

The Georgia Supreme Court has let stand without comment a state appellate ruling that a proposed coal-fired power plant is not required to limit carbon dioxide emissions.

The Court of Appeals had reversed a judge's ruling invalidating a Clean Air Act permit for the construction of the plant on the Chattahoochee River.

The appellate panel said the Fulton County Superior Court erred in ruling that the state was required to include mandatory carbon dioxide emission controls in its permitting process under the Clean Air Act.

According to court documents, after the state granted a permit to Longleaf Energy Associates in May 2007, the Sierra Club and Friends of the Chattahoochee challenged the permit and pursued administrative and judicial review.

After a 21-day hearing the administrative law judge affirmed issuance of the permit.

The two environmental groups then filed a petition for judicial review in the Superior Court.

That court said the U.S. Supreme Court's decision in Massachusetts v. EPA, 549 U.S. 497 (2007), established that carbon dioxide is an air pollutant subject to regulation under the Clean Air Act.

Therefore, the Superior Court found the permit invalid, and Longleaf appealed.

The Court of Appeals reversed, finding that the Clean Air Act did not contain regulations controlling CO2 emissions.

The trial court's ruling was not required by the CAA or Massachusetts "and would impose a regulatory burden never imposed elsewhere," the panel held.

The appeals court said the decision would compel the state Department of Environmental Protection to limit CO2 emissions in air-quality permits even though no federal statute or Georgia law or regulation controls such emissions.

Additionally, no federal or state court has ever ordered controls or limits on carbon dioxide emissions pursuant to the Clean Air Act, the panel said.

The Superior Court ruling "would engulf a wide range of potential CO2 emitters in Georgia - and Georgia alone - in a flood of litigation over permits and impose far-reaching economic hardship on the state," according to the appeals court.

The panel remanded with directions that administrative law judge's final decision must be vacated.

The environmental groups asked the Georgia Supreme Court to review the appeals court ruling, but it denied the petition without comment Sept. 28.

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