News Column

Supreme Court Blocks Lawsuit on Greenhouse Gas Emissions

June 21, 2011

Leslie Brooks Suzukamo

Coal-fired power plant

The U.S. Supreme Court on Monday said the Environmental Protection Agency has the authority to regulate greenhouse gas emissions from power plants, blocking a federal lawsuit by states and conservation groups that were trying to force cuts in power plant emissions.

Minneapolis-based Xcel Energy, one of five utilities targeted in the suit, welcomed the ruling, saying it looks forward to working with the EPA on regulations on carbon dioxide and other greenhouse gases without the threat of more lawsuits.

Greenhouse gases, particularly carbon dioxide, have been linked to climate change.

The high court voted 8-0 to block the lawsuit brought by eight states -- California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin -- targeting Xcel and the four other largest utilities -- American Electric Power Co. of Ohio; Cinergy Co., now part of Duke Energy Corp. of North Carolina; Southern Co. Inc. of Georgia; and the federal Tennessee Valley Authority.

New Jersey and Wisconsin dropped out of the suit this year after Republicans replaced Democrats as their governors.

The Obama administration had sided with the power companies.

Justice Ruth Bader Ginsburg, writing for the court, said the Clean Air Act gives the EPA authority to regulate carbon dioxide emissions from power plants.

There is no room for states to pursue a parallel track of regulation using federal judges to control emissions from power plants, Ginsburg said.

The court had declared in 2007 that carbon dioxide and other greenhouse gases are air pollutants under the Clean Air Act and that the EPA had authority to regulate those emissions for new cars and trucks. The same reasoning applied to power plants.

States and conservation groups can still use the federal courts under the Clean Air Act if they object to the EPA's eventual decision, Ginsburg added.

David Doniger, the Natural Resources Defense Council lawyer who represented the conservation groups, called on the EPA to impose new regulations "without delay." The agency has said it will act by May 2012.

Xcel Energy applauded the Supreme Court decision because it will allow the utility to work with the EPA on greenhouse gas regulations "without the threat of continued litigation," Xcel spokesman Steve Roalstad said.

"We are going to move forward working with the EPA to develop a cost-effective regulatory standard," Roalstad said.

In setting those standards, the utility wants the EPA to recognize its efforts so far to reduce its greenhouse gas emissions, Roalstad said.

Some of those efforts include Xcel's push to use wind power, which began in the early 2000s and has made it the largest provider of wind power among utilities.

Those efforts in Minnesota also included Xcel's $1 billion Metro Emissions Reduction Project, which was executed from 2007-09.

The project was the result of a compromise with local environmental groups. It involved tearing down two aging coal-fired power plants in St. Paul and Minneapolis and replacing them on the same sites with cleaner-burning natural gas plants that emit less carbon dioxide.

In exchange, Xcel kept the coal-burning Allen S. King Plant in Oak Park Heights but outfitted it with new pollution-control equipment to reduce sulfur dioxide, nitrogen oxide and mercury.

The project cut carbon dioxide emissions for the three plants by 21 percent, Xcel reported.

The Supreme Court decision was not a surprise, said Scott Strand, executive director of the Minnesota Center for Environmental Advocacy, a nonprofit that was not a party to the case.

Strand was quick to point out that the court's decision does not prevent states from bringing lawsuits using state laws, such as Minnesota's Environmental Rights Act. The law has been used to challenge everything from farm feed lots to oil pipelines, he said.

Strand said Xcel's request to get credit for its efforts so far to reduce carbon emissions is "a legitimate issue." Doing otherwise would penalize the utility, he said.

The utility is seeking changes at its largest coal-fired plants near Becker, Minn., known as Sherco 1, 2 and 3. Roalstad and Strand said it was unclear how new EPA regulations might affect the plants, which are Xcel's workhorses.

The Supreme Court decision reversed a ruling by the 2nd U.S. Circuit Court of Appeals in New York. Justice Sonia Sotomayor did not take part because she sat on the appeals court panel that heard the case.

The Associated Press contributed to this story.

Source: Copyright (c) 2011, Pioneer Press, St. Paul, Minn.

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