Topeka, KS —

Earthjustice, representing the Sierra Club, filed a brief in the Kansas Supreme Court last Friday seeking to overturn the air pollution permit granted to Sunflower Electric to build a new coal-fired power plant near Holcomb, KS.

The coal plant has been the subject of a multi-year controversy after being denied a permit in the fall of 2007. On December 16, 2010, the Kansas Department of Health and Environment (KDHE) issued a new permit to Sunflower.

Read the brief.

“When the federal Clean Air Act is violated, as is the case with the Sunflower permit, citizens can go to court to make things right,” said Stephanie Cole, representing Sierra Club Kansas. “The Sunflower permit process was so completely hijacked by special interests that a citizen lawsuit became necessary.”

This proposed plant, that will largely serve Colorado, will emit massive amounts of air pollutants, including mercury, sulfur dioxide, nitrogen oxides, and particulate matter on downwind Kansans. The plant will also rely on water from the declining Ogallala Aquifer.

The final permit was rammed through largely due to political pressure by the legislature and governor’s office even after KDHE received an unprecedented amount of public comments—nearly 6,000 public comments, many opposed to the project.

Todd True of Earthjustice said, “Kansans deserve clean energy and clean air. Despite numerous attempts by coal-boosters to push through this project, we believe the permit will not withstand the scrutiny of judicial review.”

The lawsuit claims that KDHE:

• Issued a permit that falls short of the minimum requirements of the Clean Air Act and will not adequately protect human health and the environment.
• Engaged in an improper procedure in the granting of the permit based on a legislative directive, not sound science.
• Denied the public a fair opportunity to participate in the process by rushing through review of comments to allow the project to be permitted prior to new greenhouse gas regulations taking effect.
• Issued a permit without enforceable limits on nitrogen oxides and sulfur dioxide pollution.
• Did not require “best available control technology” on new pollution sources, as required by law.
• Allowed weak pollution limits even on hazardous toxic air pollutants—the most harmful to human health—in order to save costs.

Long-term Health and Financial Consequences:

The proposed Holcomb II coal-fired power plant would emit millions of tons of pollutants each year over the 50+ year life of the project, posing substantial risks to human health and the environment. The pollutants emitted by the plant will include fine particulates, ozone forming constituents, and hazardous pollutants such as mercury, all of which EPA has found pose serious risks to human health.

Sunflower has itself admitted that there is no need in Kansas for the vast majority of the electricity from this massive new polluting plant—instead, Tri-State, a Colorado utility, is slated to receive the majority of the power. But Tri-State’s recent long-term resource plan, which it presented to the Colorado Public Utilities Commission, shows that Tri-State has no need for the capacity either.

Sunflower also owes the federal government millions of dollars for loans taken out to build the existing coal plant at Holcomb Station. Given Sunflower’s massive debt and precarious financial situation, it can’t possibly finance this new coal plant itself without putting Kansas ratepayers and American taxpayers at further risk. In a separate lawsuit, a federal court in Washington, DC recently held that the U.S. government violated the law by allowing Sunflower to proceed with this financially risky plant without first examining its environmental effects and alternative actions.

Despite having been issued a permit, the Sunflower coal plant has continued to stir controversy. Earlier this summer the Kansas City Star reported on a cozy relationship KDHE enjoyed with Sunflower during the permitting process. The KC Star analyzed hundreds of emails that revealed that Sunflower was allowed inappropriate influence over the permitting procedure and was allowed to draft responses to public comments for KDHE and influence the terms of its own permit, among other things. The emails obtained by the KC Star were not initially submitted to the Court by KDHE. Earthjustice filed a motion to ensure these documents were included in Court records.