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, 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 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 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,"
If anything is untenable, however, it is 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 John Paul Stevens-penned decision bloviated a great deal about carbon
dioxide's 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.
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, 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" 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," or BACT, the Sierra Club and Friends of the Chattahoochee
persuaded 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 were 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
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 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, 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 she hopes other
courts would pick up on 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