Another front in the battle over an expansion of a coal-fired power plant in Holcomb was opened Tuesday, when Sunflower Electric Power Corporation filed a lawsuit in federal court challenging the denial of an air quality permit.

The suit will have no bearing on an ongoing state action that also has been launched by Sunflower.

“The state action relates to what authority (KDHE Secretary) Rod Bremby had or didn’t have,” said Clare Gustin, a Sunflower spokesperson.

The federal action rests on the assertion that denial of the air quality permit was politically-motivated and violated the Constitution’s equal protection clause. The grounds given by Bremby were his concerns for public health because of carbon dioxide emissions and the potential impact of carbon dioxide emissions on climate change. There is no scientific consensus that carbon dioxide is dangerous to human health and no state or federal restrictions on carbon dioxide emissions because no standards exist.

Support for the ban came from political allies of Gov. Kathleen Sebelius, especially the Sierra Club. Sebelius' support of the ban has been widely praised on the left. President-elect Obama recently claimed that those who built new coal-fired plants would be "bankrupted" by penalties his administration will impose.

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.

A statement issued by Sunflower President and CEO Earl Watkins said the Sebelius administration discriminated not only against Sunflower in denying the air quality permit, but against 400,000 Kansans and another 1.5 million citizens from other states who would have had access to the additional electricity generated by an expanded plant.

Utility rates have already begun to rise in Kansas since the ban was imposed.

“They will be forced to pay the price of this decision for decades to come through higher electric rates,” Watkins said. “We believe we have an obligation to act on behalf of the people we serve and to correct this wrong.”

Sunflower officials also questioned why in Kansas it’s appropriate to export agricultural goods, animal health products and aircraft, while it’s not appropriate to export electricity.

“Denying the air permit on the basis that too much of the electricity would be exported impedes the right of Kansans to engage in interstate commerce, inhibiting our citizens’ pursuit of prosperity and quality of life,” Watkins said in the statement. “In a time of economic downturn, it seems unconscionable that a project like this would be denied since it creates 329 jobs earning more than $16 million in annual wages and fully complies with all state and federal requirements while helping to secure our energy independence.”

The suit notes that Bremby’s denial came despite a recommendation by his professional staff that the air quality permit be approved.

“Secretary Bremby has said on more than one occasion that KDHE has approved 3,000 air quality permits since 2003, and more than 300 since ours was denied,” said Gustin. “Obviously we’d like to know why we’ve been treated so differently.”

In making his October 2007decision, Bremby cited a state statute that grants the Secretary the authority to “affirm, modify or reverse a decision on an air quality permit after the public comment period or hearing,” and on another that authorizes the Secretary to deny or modify an air quality permit to protect the health of persons or the environment.

“I believe it would be irresponsible to ignore emerging information about the contribution of carbon dioxide and other greenhouse gases to climate change and the potential harm to our environment and health if we do nothing,” said Bremby after issuing the denial.

However, a former KDHE Secretary, James O’Connell, who served under Gov. Bill Graves, told Kansas Liberty after the initial denial that he believed Bremby had exceeded the authority given to him by those state statutes.

"My interpretation is that a secretary should use his discretion in cases that represent a clear and present danger to the public, and I don’t think [the Sunflower expansion] meets that bar,” O'Connell said.

Maggie Thompson, spokesperson for the KDHE, said because litigation was pending on two fronts, it would be inappropriate for agency officials to comment on the federal suit.

- Phil LaCerte

Resources:

The statutes cited by Bremby:

• K.S.A. 65-3008 http://www.kslegislature.org/legsrv-statutes/getStatuteFile.do?number=/65-3008.html
  
• K.S.A. 65-3012, http://www.kslegislature.org/legsrv-statutes/getStatute.do
  

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