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Top Kansas court clears way for new coal-fired power plant

By: JOHN HANNA, Associated Press
March 17, 2017 Updated: March 17, 2017 at 5:01 pm
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TOPEKA, Kan. (AP) — Kansas' highest court on Friday cleared a major obstacle to the long-delayed construction of a big, new coal-fired power plant, rejecting an effort by an environment group to force the state to regulate emissions linked to climate change.

The state Supreme Court upheld a 2014 decision by the Kansas Department of Health and Environment to give Sunflower Electric Power Corp. the go-ahead for its project. The utility wants to build an 895-megawatt plant adjacent to an existing one outside Holcomb, in southwestern Kansas and estimates the cost at $2.2 billion.

The Sierra Club sued, partly because the department didn't impose limits on greenhouse gas emissions from the new plant. The group also argued that the agency didn't impose stringent enough standards for other pollutants, including mercury and nitrogen and sulfur dioxide. It suggested that the department was using proper air-pollution models and was rushing its decision.

But in its unanimous ruling , the Supreme Court said the Sierra Club could not show that the agency's action was unreasonable or arbitrary. Justice Marla Luckert wrote for the court that the group "must do more than raise policy arguments."

The company said it was pleased with the decision, though spokeswoman Cindy Hertel called it an "incremental step" and said the utility continues to evaluate its plans. State Attorney General Derek Schmidt also was please. His office defended the department and he supports the project.

Amanda Goodin, an attorney for Earthjustice , representing the Sierra Club, said the court's decision "opens the door for a lot of pollution in Kansas." The group has estimated that the new plant would generate 8 million tons of greenhouse gas emissions a year.

"Building this plant is a big step backward," she said in a telephone interview.

Sunflower has been seeking to build a new coal-fired plant outside Holcomb for more than a decade. The project has long had strong support among legislators, particularly those from western Kansas, who have viewed it as economic development.

State House Majority Leader Don Hineman, a Dighton Republican, said while it's too early to tell how quickly the company could move toward building the plant, the Supreme Court decision is good news.

"The economic benefit would accrue to the state," Hineman said.

Sunflower provides electricity to 350,000 central and western Kansas residents through six smaller cooperatives. Its plans for the new plant have called for selling much of the new power in Colorado, long a sore point for many environmentalists.

Sunflower didn't obtain a state air-quality permit until 2010, about 18 months after then-Democratic Gov. Mark Parkinson brokered a deal with the company and the Republican-dominated Legislature that included approval of some green energy initiatives. The permit came just weeks before the federal Environmental Protection Agency issued its first rules on greenhouse gases.

The Sierra Club sued, and the state Supreme Court in 2013 ordered KDHE officials to make changes dealing with other pollutants. The department responded by issuing what it called an "addendum" to the original permit, and the Sierra Club sued again.

The department argued that because it wasn't issuing a new permit to replace the one issued late in 2010, Sunflower still was not be required to limit greenhouse gas emissions. The Supreme Court agreed.

The Sierra Club pressed its second lawsuit as the EPA under then-Democratic President Barack Obama pushed states to cut greenhouse gas emissions from power plants.

President Donald Trump, a Republican, has called climate change a hoax, and new EPA chief Scott Pruitt has said he doesn't believe carbon dioxide is a primary contributor to global warming, rejecting mainstream science. Trump's budget proposes to eliminate funding for the effort to restrict power plant emissions.

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Follow John Hanna on Twitter at https://twitter.com/apjdhanna .

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