An appeal was filed with the Wyoming Environmental Quality Council (EQC), the state's citizen board assigned to handle initial appeals of pollution control permits. On November 20, 2008, the EQC found in favor of Basin Electric in several claims and the citizen groups then appealed that decision to state court. On March 5, 2010, the Wyoming Supreme Court upheld the EQC's decision. Powder River Basin Resource Council and Sierra Club were represented by Earthjustice in the challenge.
One of the main issues before the court was how the lack of sufficient pollution controls at the power plant would make it a major contributor to acid rain in the region and haze in areas like the Northern Cheyenne Indian Reservation. The Reservation is one of America's cleanest air regions, which affords it the strongest level of protection for air quality under federal law. The tribe filed an amicus brief in support of the citizen groups' positions.
Although the court ultimately upheld the air permit, the court rejected one of DEQ's key justifications for approving the permit. DEQ had approved the permit in spite of the fact that air quality modeling that the agency required showed pollution levels would exceed the standards at the Northern Cheyenne Indian Reservation. The court found that DEQ's air quality regulations are clear -- any violation of the air quality standards is prohibited, no matter how small.
"The court's ruling strengthens protections for the cleanest air regions in Wyoming and surrounding states, including Yellowstone National Park and the Badlands Wilderness," said Robin Cooley, the Earthjustice attorney representing the citizen groups. "DEQ will no longer be able to chip away at the air quality in these pristine areas by approving projects where the individual contribution is small, but the collective impact may be devastating."
Another main issue that the court decided is whether Basin Electric should have considered newer technology to burn coal in a more efficient way that minimizes air pollution. The citizen groups wanted Basin Electric and DEQ to consider the technology as part of the universe of choices for the coal plant. "All we were asking was for DEQ to give these newer, cleaner technologies a chance," stated Shannon Anderson, community organizer at the Powder River Basin Resource Council. "Coal plants are significant, long-term investments and should be heavily scrutinized at the front end. Otherwise, Wyoming communities will be left with the pollution for decades."
"The Clean Air Act requires utilities to use the best available technology possible," added Brad Mohrmann, regional representative for Wyoming Sierra Club. "We hope in the future Basin Electric and other Wyoming utilities will lead as opposed to lag behind in innovation that will protect our environment and public health in Wyoming communities like Gillette."