In what is thought to be an unprecedented ruling, a Superior Court judge in Fulton County, Ga., halted the construction of a coal-fired power plant, saying that the plant must limit its emissions of carbon dioxide.
Citing an April 2007 US Supreme Court ruling that recognizes carbon dioxide – the primary gas responsible for global warming – as a pollutant under the federal Clean Air Act, Judge Thelma Wyatt Cummings Moore overturned a lower court's decision to issue an air-pollution permit to Dynegy's Longleaf power plant near Columbus, Ga. Her decision is believed to be the first one that links global warming to an air-pollution permit.
The coal-fired power plant – the first proposed in Georgia in 20 years – cannot begin construction until it can obtain a valid permit that complies with the court's ruling.
The 19-page ruling [PDF via GreenLaw] says that "[t]here is no dispute that the proposed power plant would be a 'major emitting facility' as defined by the [Clean Air] Act," requiring that the plant must incorporate the "best available control technology" to limit carbon dioxide emissions.
GreenLaw says that the proposed plant would emit 9 million tons of CO2 each year – the equivalent of 1.3 million cars. The firm also notes that a typical coal-fired plant emits 3.7 million tons annually, according to the Union of Concerned Scientists.
The Atlanta-Journal Constitution quotes opponents of the plant who hail the groundbreaking decision:
"We think this is the beginning of the end of conventional coal-fired power plants, because of the enormity of their emissions," said Bruce Nilles, director of the Sierra Club's national campaign against coal.
Of the 80 coal plants in the permitting process nationwide, about 30 are in active litigation, Nilles said. The Sierra Club is fighting coal plants across the country and was one of the petitioners in the Georgia case.
"Our state can find other ways to produce cleaner, more economically beneficial energy," said Patty Durand, director of the Georgia Chapter of the Sierra Club. "Other states are doing it. Why can't we?"
Robert Wyman, a partner in the Los Angeles office of Latham & Watkins, the law firm, who has represented power producers in previous cases, said of the decision: “I would be surprised if it had much of an impact. I’m not sure other jurisdictions will pick up that opinion.” He said that, despite the Supreme Court finding, federal regulators had not issued the finding required before a pollutant can be regulated.
Vickie Patton, the deputy general counsel at the Environmental Defense Fund, however, argued that the judge’s reasoning might prove persuasive to other courts facing similar issues.
The Knight Science Journalism Tracker – an insider blog for science writers – is skeptical that the ruling will stick:
Big coal has BIG money, as do the utilities that burn its product, and as does industry and, most important, as does the general public. None are at all resigned to blackouts and rolling brownouts and soaring electricity bills while coal capture and sequestration technologies remain good ideas with absolutely no full-scale prototype operations, anywhere.