Georgia Gets Green ‘Justice’

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," Moore wrote.

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

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 taxpayer pockets.

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

Steven Milloy publishes and He is a junk science expert, advocate of free enterprise and an adjunct scholar at the Competitive Enterprise Institute.