Lawyer Sanders says key KY Clean Air Act case argued on meaning of "best available control technology" for coal burning power plants.

In a very important case under the Clean Air Act, a three-judge panel consisting of Court of Appeals Judges Denise G. Clayton, Joy A. Moore and Jeff S. Taylor heard oral arguments in Environmental and Public Protection Cabinet v. Sierra Club at 11 a.m. EDT on Tuesday, July 29.

In the case on appeal, the Franklin Circuit Court found that the air-quality permit issued to Peabody Energy for its proposed Thoroughbred power plant should be remanded to the EPPC because the order issuing the permit was deficient due to legal and factual errors.
Attorneys for Kentucky’s Energy and Environment Cabinet and Thoroughbred Generation attempted to sway three appellate judges into overturning a lower court ruling that effectively blocked construction of a proposed 1,500-megawatt coal-fired power plant in Muhlenberg County.

On the other side of the table, lawyers for the Sierra Club argued that the lower court correctly ruled that Thoroughbred’s proposed air pollution controls were insufficient to meet mandatory standards controls under the Clean Air Act. The attorneys argued that Peabody’s proposed plant did not use best available air pollution control technology -- even though better air pollution controls were readily available to the company. As a result, Peabody’s plant would emit more sulfur dioxide and other air pollutants than other similar coal-fired plants because its air pollution control equipment was inferior.

Peabody wants to build the large coal-fired electric generating near Central City, Kentucky. Peabody submitted a permit application to build the large plant in 2001, and the state initially granted it an air permit in 2002. The Sierra Club immediately appealed the agency’s original decision because Peabody’s planned air pollution controls did not meet the mandatory standards in the Clean Air Act. The Sierra Club claimed the plant would emit too much air pollution.

In 2005, a hearing officer for the state agency recommended that Peabody’s air permit application be sent back to the Division for Air Quality for more engineering review to ensure that the huge coal-fired electric generating plant would indeed install and use the best available pollution control technology to reduce its air pollution.

The hearing officer believed the plain wording of the Clean Air Act required the plant to install the best available control technology, or in other words, those controls most efficient in removing air pollution. In her 300-page comprehensive report, the hearing officer also recommended the agency require Peabody to do further studies to ensure the plant's emissions would not injure plant and animal life. One year later, then-Cabinet Secretary LuJuana Wilcher, who was appointed by Ernie Fletcher, overruled the hearing officer's recommendations and granted Peabody a permit.

The Sierra Club appealed the agency head’s decision to the Franklin Circuit Court. The circuit court ruled last year Peabody’s air permit should not have been granted, saying the agency’s reason for overturning the hearing officer was contrary to the evidence in the hearing. Peabody and the state environmental agency appealed the Franklin Circuit Court ruling.

During much of the oral arguments held on Tuesday, attorneys and the three-judge panel sparred over the meaning of the plant’s requirement under the Clean Air Act to install “best available control technology” to reduce air pollution. The appellate panel also focused on whether better air pollution controls were available when Peabody proposed the plant.

The Kentucky Court of Appeals heard oral arguments on the important Clean Air Act case in the Circuit Courtroom of the Harrison County Justice Center at 115 Court Street in Cynthiana.