Environment: 1, Proposed Georgia Coal Plant: 0

Fulton County Superior Court Judge Thelma Wyatt Cummings Moore issued a decision today effectively halting construction of the first coal-fired power plant proposed in Georgia in over 20 years. The decision overturns an administrative court’s ruling that affirmed the state Environmental Protection Division’s (EPD) decision to issue an air pollution permit for Dynegy’s Longleaf plant. In practical terms, Dynegy cannot begin construction of the plant unless it can obtain a valid permit from EPD that complies with the Court’s ruling. The Judge held that EPD must limit the amount of carbon dioxide (CO2) emissions from the plant, a decision that will have far-reaching implications nationwide; this is the first time since the April 2, 2007, Supreme Court decision requiring the Environmental Protection Agency to regulate CO2 that a court has applied that standard to CO2 from an industrial source rather than from motor vehicles.

The permit as issued by EDP would have allowed the following:

• This plant would produce 9 million tons of global warming carbon dioxide pollution annually – equal to adding 1.3 million cars on Georgia’s roads every year. A typical plant produces 3.7 million tons annually according to the Union of Concerned Scientists.
• This plant would unnecessarily emit 4,700 tons of sulfur dioxide (SO2) every year.
• This plant would violate EPA’s standards for safe air by exceeding ambient air quality standards for fine particulate matter where the plant is located.
• This plant would emit nitrogen oxide (NOx), causing smog, acid rain, and health problems (EPD is allowing Dynegy to save money by capturing only 67% of these emissions).
• This plant would be allowed to take more than 20 million gallons (net) per day from the Chattahoochee River – the permit allows intake of 27 million gallons, of which roughly 5 million are supposed to be returned.

The ruling is the first to apply the Supreme Court’s Massachusetts vs. EPA decision to the question of greenhouse gas pollution from power plants.

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[Dynegy is] the Houston-based energy company with several other proposed coal-fired power plants across the country. Dynegy and other fossil fuel polluters have been scrambling to get new plants started in anticipation of future limits on greenhouse gases, before investors and ratepayers recognize the risk.

Faced with the ruling in Massachusetts that CO₂ is an “air pollutant” under the Act, Respondents are forced to argue that CO₂ is still not a “pollutant subject to regulation under the Act.” Respondents’ position is untenable. Putting aside the argument that any substance that falls within the statutory definition of “air pollutant” may be “subject to” regulation under the Act, there is no question that CO₂ is “subject to regulation under the Act.”