Kansas Liberty: 12 December 2008
Current legal challenges could be rendered moot if Legislature acts
Coal plant dispute is heading to the Kansas Supreme Court
A Kansas administrative hearing officer sided with the Sebelius administration Thursday in its ongoing battle against the expansion of a coal-fired power plant planned for Holcomb.
The ruling, which is non-binding, will force the issue to the Kansas Supreme Court.
Officials of Sunflower Electric Corporation, who cried foul when Kansas Secretary of Health and Environment Rod Bremby defied his own staff’s recommendation in October 2007 and denied an air-quality permit needed to allow the project to proceed, welcomed the relatively quick action.
“We commend the hearing officer for his expedited ruling and acknowledgment the proper place for this matter is before the courts,” Sunflower officials said in a statement. “As stated by the hearing officer, he is not in a position to substitute his opinion for that of another agency, and therefore, the proper place for interpretation of the statutes in question is with the courts.”
The battle over the coal plant, one of the dominant issues in the Kansas Legislature last year, is being waged on two primary battlegrounds, and a third will open when the Legislature convenes January.
Besides the state proceeding, which now moves to the state’s high court, Sunflower officials also have challenged denial of the air quality permit in federal court.
The state, through Attorney General Steve Six, has filed a response to Sunflower’s petition, and Sunflower has until the Jan. 1 to file its own response.
No hearings will be scheduled until after Sunflower's response is filed.
The federal action contends that denial of the air quality permit was politically motivated and violated the Constitution’s equal protection clause. In addition, the action contends that denial of the permit violated the commerce clause of the Constitution, as it was based partly on the accurate assertion by the Sebelius administration that some power from the expanded plant would be exported to other states.
Precisely what would happen if the state court sided with one party, and the federal court sided with the other, is a matter of legal conjecture.
“I suppose it might boil down to whether regulation is primarily a state or federal government responsibility,” said Jim O’Connell, a lawyer who served as secretary of the Department of Health and Environment under former Gov. Bill Graves.
O’Connell said legislative action could render current legal proceedings moot.
“If the Legislature was successful in doing what it attempted to do last session, then I don’t think the present actions would have any force and effect,” he said. However, he added that future legislative action would still be subject to new legal challenges.
Leaders of both the Kansas House and Senate have indicated they will revive the issue during the Legislation session.
After his re-election as House Majority Leader, Ray Merrick of Stilwell told Kansas Liberty that he would like to see quick Legislative action on the coal plant.
“I’d like to see us do an up-or-down vote on a clean bill early in the session so we can get that issue behind us,” Merrick said.
In addition, Senate President Steve Morris said a legislative committee was drafting a comprehensive energy bill that would include the plant’s expansion.
- Phil LaCerte