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Kansas Supreme Court Issues Unanimous Decision to Reject Air Permit Issued for Proposed Sunflower Coal Plant in Southwestern Kansas

Health, clean energy and clean air advocates applaud Kansas Supreme Court decision on Sunflower coal expansion
October 4, 2013
Topeka, KS —

In a decision that will protect public health and ratepayers, the Kansas Supreme Court today invalidated the air pollution permit granted to Sunflower Electric Power Corp. by the Kansas Department of Health and Environment in 2010. The permit must be reconsidered by KDHE and all current air pollution regulations must be applied. With new standards in effect since the project was first proposed, the likelihood of the expansion plant legally meeting those standards or finding financial backing for unneeded coal-fired generation are dim.

The current Sunflower Electric Power Plant in Holcomb, KS. (DOE)

“The proposed Holcomb coal plant is now a fading mirage on the plains,” said Holly Bender, Deputy Director of the Sierra Club Beyond Coal campaign. “As states embrace renewable energy and utilities are locking in contracts for clean energy at record low prices, there just isn’t a need for the dirty, expensive energy that Sunflower Electric is looking to sell.”

The proposed coal plant, also known as Holcomb II, was the most intensely contested coal plant in Kansas history, as well as one of the most controversial permits ever considered by KDHE. If built, the new plant would release thousands of pounds of toxic pollution in Kansas while the power it generates would belong to Tri-State Generation and Transmission Association, a Colorado-based utility.

“This is a good day for everyone in Kansas who breathes. The Kansas Supreme Court saw through Sunflower’s smoke screen and clearly agreed that Kansans deserve clean air. The Kansas Department of Health and Environment has the responsibility to meet that goal for the state,” said Amanda Goodin, Earthjustice lawyer representing the Kansas chapter of the Sierra Club. “The permit for this dirty coal plant would have allowed tons of unnecessary and harmful pollution to be dumped into the air, putting Kansans on the hook for respiratory and other health problems. The Supreme Court decision puts the brakes on this dinosaur of a project, and sends a clear message to Sunflower that they’re not going to get away with playing fast and loose with the law.”

Kansas is already making important strides to develop clean energy like wind, with more than 2,600 megawatts of wind power currently online in the state.

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This proposed plant will emit massive amounts of air pollutants in Kansas, including mercury, sulfur dioxide, nitrogen oxides, carbon dioxide, and particulate matter. According to Tri-State’s recent resource plan on file with the Colorado Public Utilities Commission, it has no current need for electricity from the new plant until 2027, at the earliest, making the plant an unnecessary and a risky investment.

"This ruling calms the fears of many Coloradans who are concerned about Tri-State's coal investments and the direct impact the investments will have on Colorado ratepayers,” said Nellis Kennedy-Howard, Sierra Club Beyond Coal Campaign Representative in Colorado. “Tri-State’s commitment to expanding its coal resources is at odds with the cost-effective clean energy solutions that currently exist in Colorado and beyond.”

Sunflower Electric, which would manage and operate the plant, still owes the federal government hundreds of millions of dollars for taxpayer-supported loans taken out to build the existing coal plant at Holcomb Station. Allowing Sunflower to build yet another coal plant it doesn’t need and can’t afford is likely to put existing taxpayer support at even greater risk.

“Coal in Holcomb is already a proven financial loser,” said Todd True, Earthjustice lawyer representing the Kansas chapter of the Sierra Club. “Given Sunflower’s massive debt and precarious financial situation, it can’t possibly finance this new coal plant itself without putting ratepayers and American taxpayers at further risk.”

In a separate lawsuit, a federal court in Washington, D.C. 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.

Kansas is already making important strides to develop clean energy like wind. More than 51,000 megawatts of wind power are online across the country, with more than 2,600 megawatts of wind power currently online in Kansas. The wind energy industry supports 3,000 jobs in Kansas, and the state gets more than 10 percent of its power from wind

“Kansas can lead the way nationally on clean energy,” said Craig Volland, Air Quality Chair of the Kansas Chapter. “Wind turbines don’t require Kansas water. Solar panels don’t require burning millions of tons of coal purchased from Wyoming and the dangerous air pollution that goes with that. It’s time for Kansas electric utilities to invest in Kansas’ future and commit to clean energy jobs and investment, rather than investing in a dirty, expensive relic of the past like coal.”

The Kansas Supreme Court’s opinion:

  • Holds that KDHE erred by failing to require the permit to comply with the one-hour standards for nitrogen oxides and sulfur oxides. These standards require strict emission limits to protect the public from respiratory illness.
  • Holds that KDHE will have to incorporate stringent new standards for dangerous toxins like mercury and acid gases on remand.
  • Broadly affirms that citizens have a right to sue over the permit’s failure to protect clean air and public health.
  • Reverses the permit and sends it back to KDHE to issue a new permit that complies with the law.


Amanda Goodin, Earthjustice, (917) 572-4106

Emily Rosenwasser, Sierra Club, (312) 251-1680, ext. 119

We're the lawyers for the environment, and the law is on our side.