In 2003 Earthjustice attorney Abigail Dillen filed a lawsuit challenging the federal government's decision to green-light the plant over the objections of their own air pollution experts. The government initially argued the case should be dismissed. That effort failed when the DC Circuit Court of Appeals ruled that citizens can hold government officials accountable when they fail to protect public lands (such as Yellowstone) from Clean Air Act violations. Faced with the prospect of having to defend its arbitrary decision to approve the Roundup Power Plant, the government voluntarily agreed to withdraw its approval of the plant and undertake a new analysis of the project's visibility impacts. On December 16, 2005, the federal Department of the Interior sent a formal letter to the state of Montana saying it can no longer rely on the previously issued federal approvals. Pending completion of new analysis, the Roundup Power project remains on hold.
"Political appointees at Interior were overriding their own scientists to accommodate the demands of coal power industry -- the single dirtiest industry in the country when it comes to global warming and more localized problems like haze over our national parks," said Earthjustice attorney Abigail Dillen. "When it became clear that they were going to be held accountable in court, they gave up and agreed to start over."
The federal Clean Air Act requires the Secretary of the Interior to protect so-called "Class I" areas, which include federally designated wilderness areas larger than 5,000 acres and national parks larger than 6,000 acres.
In December 2002, air experts at the National Park Service and the US Fish and Wildlife Service determined that the proposed Roundup coal plant would be "a significant contributor" to adverse visibility impacts "severe in both frequency and magnitude" in Yellowstone and U.L. Bend Wilderness Area. Accordingly, the Interior Department issued a formal finding of "adverse impact" under the Clean Air Act.
Although this "adverse impact" finding should have legally required Roundup to reduce or offset its emissions, senior officials at the Interior Department immediately agreed to review the finding in response to complaints from the Roundup Power Company. Agency air experts undertook further analysis and again concluded that pollution from Roundup would impair visibility at Yellowstone and a protected wilderness area. Nevertheless, after a conference call with the power company, Interior officials sent a letter withdrawing the adverse impact finding and allowing the project to proceed as planned without notifying any of the government scientists who had sounded the earlier warnings.
"It's just common sense that the federal government should require that any new power plant protect air quality and visibility in Yellowstone," said Michael Scott of the Greater Yellowstone Coalition. "There's something wrong with the picture when you can't get a clear view in Yellowstone."
Earthjustice represented the National Parks Conservation Association, Greater Yellowstone Coalition, and The Wilderness Society in this case.