MEIC Appeals Highwood Air Pollution Permit

(August 2007)  In May 2007, the Montana Department of Environmental Quality issued an air pollution permit to SME for Highwood. In June 2007, MEIC and Citizens for Clean Energy (CCE), a group of concerned citizens living in and around Great Falls, appealed the permit to the Board of Environmental Review (BER). The BER hears all administrative appeals on air pollution permits. Any BER decision can be appealed to State district court.

Although there are numerous flaws with the air pollution permit, MEIC chose to focus on two issues of particular importance.

First, in March of 2007 the U.S. Supreme Court issued a seminal decision stating that carbon dioxide and other chemicals that cause and contribute to global warming are air pollutants under the federal Clean Air Act. Until then, the Bush Administration had refused to regulate global warming pollutants. The Court’s decision contained a stinging rebuke of the Bush Administration’s tactics:

“An agency cannot, however, defend a decision based on its own preference for a policy approach different from the one Congress chose… On EPA’s theory, the agency could have right in front of its eyes conclusive evidence that climate change…is causing and will, for the indefinite future, continue to cause an environmental catastrophe, and so long as it did not take a close look at that evidence, it would have absolutely no obligation to do anything to mitigate the threat. EPA’s interpretation does violence not only to the text (of the law) and to its basic sense, but also to an animating theme of the Clean Air Act itself: that as scientific knowledge advances it should be pressed into service in protecting the public from threats to its health and welfare.” (Massachusetts v. EPA, March 2007)

Although the Supreme Court decision was limited to motor vehicle emissions, applying the same logic to other large sources of global warming pollutants is an obvious next step. The largest source of CO₂ emissions in the U.S. and Montana is the combustion of fossil fuels in such uses as electricity generation and transportation. As fossil fuels are burned, the carbon stored in them is emitted almost entirely as CO₂. The amount of carbon in fuels per unit of energy content varies significantly by fuel type. Coal contains the highest amount of carbon per unit of energy, while petroleum and natural gas have about 25% and 45%, respectively, less carbon per BTU than coal. Collectively, coal-fired power plants are the largest source of greenhouse gas emissions in the world. It is logical that if global warming pollutants from vehicles are considered air pollutants under the law, then global warming pollutants from a significant and more concentrated source such as coal-fired power plants should also be regulated.

In Highwood’s air pollution permit, DEQ wrote that it would not consider requiring technology to lower carbon emissions because “greenhouse gases, such as carbon dioxide (CO₂) are not currently regulated under the Montana or federal Clean Air Act.” MEIC believes that DEQ is wrong.

Highwood is the first coal-fired power plant in the United States to receive an air pollution permit since the Supreme Court’s decision. Highwood would add almost three million tons per year of global warming pollutants to the atmosphere. Despite the fact that global warming pollutants from Highwood would contribute to an already dire problem, DEQ refused to consider alternatives that would involve less pollution. MEIC is arguing that DEQ must consider these other less polluting alternatives.

Second, and the other issue raised in this case, is DEQ’s failure to regulate fine particulate emissions. Fine particulates are microscopic particles that can lodge deep in the lungs and cause a host of serious health problems, particularly respiratory ailments. More than 1,000 peer-reviewed studies have shown a link between fine particulate pollution and asthma, heart attacks, lung cancer, and premature mortality. Despite this evidence, and despite EPA’s recently strengthened national standards for fine particulates, DEQ failed to specifically analyze fine particulate emissions or to guarantee compliance with EPA’s new standards.

The BER is expected to hear the appeal at the beginning of 2008 and make a decision shortly thereafter. MEIC and CCE are represented in the case by Earthjustice.

IN THE NEWS

Board delays appeal of plant's air-quality permit (by KARL PUCKETT, Great Falls Tribune Staff Writer. 2/9/08)

Appeal of coal-fired power plant's air-quality permit moves into round two (by KARL PUCKETT, Great Falls Tribune Staff Writer, 1/23/08)