More legal tidings from David Bookbinder, Chief Climate Counsel to the Sierra Club.

Power plants:  Perhaps the eagerly-awaited climate decision these days is the Bonanza case in front of EPA’s Environmental Appeals Board; the issue here is whether new coal-fired power plants are required to install Best Available Control Technology for CO2. 

Following oral argument on May 29, last week the EAB issued an invitation for further briefing.  EPA’s efforts to read Section 821 out of the Clean Air Act have a certain frying pan – fire quality.  The EAB would like a coherent explanation from EPA as to how the CO2 monitoring and reporting requirements in Section 821 (which the 821 regulations explicitly make enforceable under the Act) can be enforced if 821 — as EPA now claims — is actually not part of the Clean Air Act.  EAB also requested further briefing on the issue of whether PSD permitting is required for any major source of any pollutant.  EPA’s brief is due July 16; Sierra Club’s response August 15. In Re Deseret Power Cooperative (Bonanza),  PSD Appeal No. 07-03, EAB

Autos:  In the Rhode Island Pavley case, the court scheduled argument on the pending summary judgment motions for July 23.  With the auto industry having lost in California on summary judgment and in Vermont after trial, the court limited briefing to only one issue: res judicata.  Lincoln-Dodge, Inc. v. Sullivan, 06-69T, DRI.

There was also action (as it were) in the last, and newest, of the Pavley cases: the New Mexico defendants answered on June 11.  This case was brought solely by auto dealers, presumably to avoid the situation they’re in in Rhode Island.  The urgency of this case is underscored by the fact that it was filed on December 27, 2007, but the dealers didn’t serve the state until late March, which was the followed by an amended complaint, etc.  Zangara Dodge v. Curry, 07-1305 ACT/LFG, DNM.

More power plants:  The Rural Utilities Service (RUS), part of your U.S. Department of Agriculture, has lent billions of dollars to build coal-fired power plants.  If a plant that has borrowed from RUS then wants to expand, these loan agreements (understandably) give RUS the right to approve or nix the project. 

Question: do such RUS approvals trigger NEPA?  The answer may come in a case involving the 1600 MW Sunflower behemoth that was killed by Kansas Governor Kathleen Sebelius in one of the most courageous acts by an elected official in recent memory.  Arguments scheduled for June 17 were cancelled due to power outages caused by storms, but stay tuned.  Sierra Club v. USDA Rural Utilities Service, 07-1860 (EGS), DDC.