by Mike Sacks, Law Clerk, and Hannah McCrea, Online Communications Director, Constitutional Accountability Center

Earlier this month, the Georgia Court of Appeals largely reversed a lower court’s landmark ruling last summer in Longleaf Energy Associates v. Friends of the Chattahoochee.

In June 2008, Fulton County Superior Court Judge Thelma Wyatt Cummings Moore invalidated an air quality permit granted by the Georgia Environmental Protection Division (GEPD) to Longleaf Energy Associates, a branch of the Dynergy energy empire, to build a 1200-megawatt coal-burning power plant on the Chattahoochee River. Ruling in a lawsuit brought by a coalition of environmental groups, Judge Moore held that the permit failed to include a limit on carbon dioxide (CO₂) emissions in its Best Available Control Technology (BACT) review, citing the United States Supreme Court’s decision in 2007’s Massachusetts v. EPA that recognized CO₂ as a greenhouse gas under the Clean Air Act.

Earlier this month, however, a three-judge panel of the Georgia Court of Appeals unanimously rejected Judge Moore’s decision, holding that “neither the CAA nor the [Georgia Air Quality Act] contain regulations controlling CO₂ emissions.” The panel added that if Judge Moore’s decision were left in place, it “would impose a regulatory burden on Georgia never imposed elsewhere.”

(Nonetheless, construction on the new plant remains on hold. Although the state Court of Appeals ruled that the GEPD need not include limits on CO₂ emissions in granting permits to coal-fired plants, it also held that the permit is invalid because its initial approval was the result of an Administrative Law Judge’s failure to make independent decisions during her review.)

The central question in this case — whether the Prevention of Significant Deterioration (PSD) program established under the Clean Air Act (through which “major emitting facilities,” including new coal-fired power plants, are permitted) requires a BACT review for CO₂ – was addressed last year by the EPA’s top administrative panel, the Environmental Appeals Board. In the so-called “Bonanza” case, the Board reviewed a permit issued to a Utah coal-fired power plant that did not include a BACT review for CO2. Responding to a challenge to the permit brought by the Sierra Club, the Board concluded last November that the language in the Clean Air Act was currently ambiguous and that the EPA had not provided sufficient reasoning for not requiring a BACT review for CO₂ in the Utah plant’s PSD permit. It thus vacated the permit, ordering the EPA to carefully reconsider whether a BACT review should include CO₂.

As previously reported, the Bush Administration responded rapidly to that ruling with the notorious “Johnson Memo,” which stated that the PSD program does not require a BACT review for C0₂. However, following the 2009 Inauguration, the Obama Administration agreed to reconsider the Johnson Memo. That reconsideration is still in progress and no other federal courts have addressed the issue of whether the Clean Air Act requires a BACT review for CO₂ for new coal-fired power plants. The Georgia appellate Court’s ruling thus puts even more pressure on the Obama Administration’s review: it is now the last, best hope for Americans seeking to ensure that new coal-fired power plants take into account the impact their CO₂ emissions are having on the climate crisis.