Muckraker: Grist on Politics

In a major win for environmentalists, the U.S. EPA’s Environmental Appeals Board handed down a landmark decision on Thursday that essentially puts a freeze on the construction of as many as 100 new coal-fired power plants around the U.S.

It will now be up to the Obama administration to develop rules on carbon dioxide emissions from such plants.

In July 2007, the EPA issued a permit for a proposed Bonanza coal-fired power plant in Utah. Lawyers for the Sierra Club filed a request that the permit be overturned because it did not require any controls on carbon dioxide pollution. The enviros pointed to the Supreme Court’s April 2007 decision in Massachusetts v. EPA, which found that the EPA has the authority to regulate greenhouse gases under the Clean Air Act.

In its Thursday decision, the appeals board ruled that the Bush administration had failed to offer a good reason for not regulating greenhouse-gas emissions from the proposed Bonanza plant. The board kicked the permit request back to the regional EPA office in Denver, saying it should reconsider whether the best available pollution controls for CO2 should be required, and stressing that it must adequately explain its decision. “[T]his is an issue of national scope that has implications far beyond this individual permitting proceeding,” the board wrote.

“Essentially what this decision does is it gives the Obama administration a clean slate to decide what our nation’s energy future should be,” said Joanne Spalding, the senior attorney at the Sierra Club who argued the case before the board. “It puts it back in the lap of an Obama EPA to determine how to treat greenhouse-gas emissions under the Clean Air Act, and it gives the opportunity to establish policies that will essentially favor clean energy and impose restrictions on fossil fuels that emit lots of greenhouse gases.”

While greens are cheering the decision, at least one industry representative is calling it a win for his team. Rich Alonso, who represents utilities and power-plant developers for the law firm Bracewell & Giuliani and previously served as a senior air attorney with EPA’s enforcement office, points out that the board’s decision doesn’t explicitly require the EPA to regulate CO2 under the Clean Air Act; it simply remands the decision to the regional office.

“The EAB refused to side with the environmental groups and it found that the existing Clean Air Act does not require CO2 to be regulated,” Alonso said. “A ruling in support of regulation would have turned American industry on its head by forcing inappropriate and inflexible CO2 regulation across the country, instead of allowing Congress to develop a national program to address CO2.”

But Jason Hutt, another attorney representing utilities, sees a definite downside in the decision. “All permits in the pipeline are now stymied,” he told the Associated Press.

No matter what industry is saying, enviros see the ruling as a notable victory, even if only a partial one.

“It’s basically saying let’s stop and think before we build this whole fleet of new coal plants that will be putting massive greenhouse-gas emissions into the atmosphere,” said Spalding