Sunflower & KDHE's Rod Bremby

[Made in the USA]

High court set stage for coal ruling, Bremby says
BY JOHN HANNA
Associated Press

TOPEKA - The state regulator who blocked two coal-fired power plants in southwest Kansas believes the science about global warming backs him up but says it still wasn't the main justification for his decision.

Rod Bremby, secretary of Health and Environment, said he relied on a U.S. Supreme Court decision in April 2007 declaring that federal law considers carbon dioxide a pollutant. The court sided with Massachusetts and 11 other states pushing the Environmental Protection Agency to regulate CO2.

Bremby also said that the concerns of eight other states also were important. And, he said, the decision took on a moral dimension as he considered his duty to protect Kansans' health and the state's environment.

CO2 ruling was key

But Bremby said the U.S. Supreme Court's decision was crucial because the state's air-quality laws are tied to the federal Clean Air Act. Deciding that CO2 wasn't a factor would have created "a complete disconnect," he said.

Bremby decided in October to deny an air-quality permit to Sunflower Electric Power Corp. for the two plants.

"I think it was a typical permitting decision until the Supreme Court decision suggested that CO2 needed to be considered as a pollutant," Bremby said. "The science was really insufficient for the decision. It was the science coupled with the interpretation of federal law by the Supreme Court."

Sunflower is challenging Bremby's decision in a case before Kansas' highest court. Many legislators also view the decision as arbitrary and want to reverse it, as well as strip the secretary of some of his power.

Gov. Kathleen Sebelius vetoed one bill they approved last month, and legislators sent her a second last week, expecting her to reject it as well.

Sunflower wants to build the two plants outside Holcomb, in Finney County. The $3.6 billion project enjoys bipartisan support because many lawmakers view it as economic development and important to making sure Kansas has enough power in the future.

"I think he got the cart way before the horse, jumping out with this kind of decision without any consultation whatsoever with the Legislature and other policy makers," said Senate President Steve Morris, a Hugoton Republican who strongly supports Sunflower's project.

Bruce Nilles, the director of the Sierra Club's national anti-coal campaign, said Bremby's decision made Kansas a leader among states in fighting global warming.

"You have a Legislature trying to take Kansas to the back of the pack," Nilles said.

Business not a factor

Bremby acknowledged criticism of his decision as hurting the state's business climate or making it harder for utilities to keep up with growing power needs. He said those aren't questions for his agency, which is charged with protecting the environment and public health.

And, as he did when he announced his decision, Bremby said he couldn't ignore a scientific consensus linking man-made greenhouse gas emissions to climate change.

"To deny that this information had any relevance whatsoever would have been problematic," he said. "I think that it was a moral decision to consider how one might factor it into the stewardship and the protection of the land."

Bremby ticked off a list of possible problems caused by climate change, including increased drought, new and more aggressive crop pests and stress on livestock. He also noted that the attorneys general of eight states protested, saying the new plants would undercut their states' efforts to reduce greenhouse gas emissions.

Then, he said, there was a change in the legal climate caused by the U.S. Supreme Court's decision.

Critics of Bremby's decision, including Morris, noted that the dispute centered on the suing states' desire to regulate auto emissions, not utilities. But Bremby said the court, in declaring CO2 a pollutant, signaled that federal law meant for emissions to be addressed.

"We anticipated litigation, regardless of the decision, and so we wanted to make sure that we factored in everything possible," Bremby said. "We had to factor that in."

Bremby said that while the Department of Health and Environment staff who handle air-quality permits continued its work on Sunflower's application, another team reviewed the U.S. Supreme Court decision.

"As you might imagine, we had mixed views internally," he said. "Pro or con, we knew that there would be litigation."

While he acknowledged the criticism of his decision has been intense, he said he's also received personal messages of support.

"I've gotten letters. I've gotten phone calls, e-mail messages from people from literally all over the world," he said. "I've gotten letters from nuns who've said that they've been praying for me."