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Georgia Gets Green ‘Justice’

By Steven Milloy
July 3, 2008

Vicki Lawrence’s 1972 hit, “The night the lights went out in Georgia,” may become the official state song thanks to what passes for justice in the court of Fulton County, GA judge Thelma Wyatt Cummings Moore.

Acting on a petition from the Sierra Club and the Friends of the Chattahoochee, Judge Moore invalidated a permit issued by the Georgia Environmental Protection Division allowing Longleaf Energy Associates to build a 1,200 megawatt coal-fired power plant in Early County.

The key issue in the case is the emission of carbon dioxide (CO₂) from the proposed plant.

The permit granted to the plant did not limit CO₂ emissions from the plant for the simple reason that the federal Clean Air Act does not include CO₂ as an “air pollutant” to be regulated.

While Judge Moore observed that the permit could be upheld if CO₂ was not an “air pollutant” subject to the Clean Air Act, she concluded that the Supreme Court had already decided the matter to the contrary in its 2007 decision, Massachusetts v. EPA.

“Faced with the ruling in Massachusetts that CO₂ is an ‘air pollutant’ under the Act, [Longleaf] is forced to argue that CO₂ is still not a ‘pollutant subject to regulation under the Act.’ [Longleaf’s] position is untenable,” Judge Moore wrote.

If anything is untenable, however, it is Judge Moore’s misreading of the Supreme Court’s decision. The Court did not, in fact, rule that CO₂ was an air pollutant that must be regulated under the Clean Air Act.

The Court wrote that, “we hold that EPA has the statutory authority to regulate the emission of [greenhouse] gases from new motor vehicles.”

So the Court only ruled that the EPA may regulate CO₂, not that CO₂ is an “air pollutant” for purposes of the Clean Air Act.

Although the 5-4, Justice Stevens-penned decision bloviated a great deal about carbon dioxide causing global warming, in legal parlance this is known as “dicta,” a sort of judicial editorializing. The Court’s decision and legal significance was strictly limited to the majority’s disapproval of the EPA’s process for declining to regulate CO₂.

“In short, EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change. Its action was therefore ‘arbitrary, capricious… otherwise not in accordance with the law… We need not and do not reach the question whether on remand the EPA must make an endangerment funding… We only hold that EPA must ground its reasons for action or inaction in the statute,” the Court concluded.

Judge Moore, unfortunately, based her decision on the Court’s non-legally binding musings about CO₂ rather than the Court’s actual ruling.

Building on her gross misapplication of the law, Judge Moore went on to essentially impose an impossible-to-meet technology standard on the proposed plant.

In contrast to the traditional method of burning coal to generate steam that drives an electricity-producing turbine, the technology called “integrated gasification combined cycle” (IGCC) converts coal to a gas that is burned to drive the turbines.

IGCC is used by only a few power plants around the world on essentially a demonstration project basis with good reason since an IGCC plant costs nearly three times as much as a conventional coal plant. The alleged “advantage” of IGCC if it can be so labeled is that it reduces CO₂ emissions.

Because the Clean Air Act requires that air pollutants be regulated by “best available [pollution] control technology” (BACT), the Sierra Club and Friends of the Chattahoochee persuaded Judge Moore that any permit for the Longleaf plant must be based on emissions limits that could be achieved by IGCC despite that the technology is not really commercially available.

But even if IGCC was commercially available, it’s not at all clear that it would be considered BACT since one of the factors in determining whether a technology is BACT is cost. While IGCC may reduce power plant CO₂ emissions, it would substantially increase the emissions of dollars from consumer and taxpayer pockets.

Judge Moore made no effort to do a cost-benefit analysis to see whether IGCC might qualify as BACT.

While it may have seemed like a no-brainer to Judge Moore to side with the local Green elites against the out-of-state power company that applied for the permit, she actually wound up siding against the working people and economy of her own state.

For no good reason, Judge Moore denied Georgia the many well-paying jobs associated with the $2 billion plant construction and permanent plant operations. There’s also the not-so-small matter of the much-needed energy the plant would have produced.

Watch for this sort of Green justice to come your way. A lawyer for the activist group Environmental Defense told the New York Times that she hoped other courts would pick up on Judge Moore’s “reasoning.”

Let’s hope, instead, that the next Judge Moore can be persuaded to apply the actual law to real-life facts rather than to impose fantasy emissions limits that can only be met by not-ready-for-prime-time technology.