Coal plant litigation

From Global Energy Monitor

In addition to staging direct actions against coal and backing regulatory changes on the national, state, and local levels, environmental and grassroots groups in the United States also use the legal process to fight global warming pollution from coal-fired power plants. Lawsuits and legal challenges have been effective in stalling or halting the construction of new coal plants, as well as reducing the amount of harmful pollutants emitted by existing coal-fired facilities.

Federal and state regulations provide several avenues for coal plant cases. Litigation has been filed under the National Environmental Policy Act (NEPA), which was signed into law by Richard Nixon on January 1, 2009. This legislation requires the preparation of environmental impact statements (EISs) for major Federal actions that significantly impact the environment. Many U.S. states have adopted their own versions of NEPA and require the environmental impact review for new coal plant proposals. These suits are usually filed when the government has made a decision that the plaintiffs seek to overturn, and often involve the consideration of green house gas emissions and the impacts on climate change.[1]

The Clean Air Act also provides several provisions used to fight proposed and existing plants. The Act established National Ambient Air Quality Standards (NAAQS) to regulate pollutants including sulfur dioxide, particulate matter, nitrogen oxides, ozone, lead, and carbon monoxide. In addition, New Source Review (NSR) regulations require that stationary sources of air pollution, including coal-fired power plants, get permits before construction can begin. Under NSR, Prevention of Significant Deterioration (PSD) permits are required for new coal plants and for existing plants that are being modified in a way that will significantly increase emissions. These permits require the installation of Best Available Control Technology (BACT) for regulated pollutants.[2]

Many recent coal plant cases build from Massachusetts v. EPA. In the landmark 2007 ruling, the Supreme Court voted 5-4 that under the Clean Air Act, the Environmental Protection Agency can regulate carbon dioxide and other greenhouse gases. The Court remanded back to EPA the issue of whether carbon emissions constitute human endangerment.[2] In April 2009, the agency concluded the scientific review ordered by the Court and announced its "endangerment finding," officially declaring that greenhouse gases are pollutants that threaten public health and welfare.[3][4] EPA's proposed ruling provides significant grounds for continued litigation against coal-fired power plants, athough it remains to be seen whether regulations will come from EPA itself or from Congress in the form of comprehensive climate change legislation.

There have also been state and federal public nuisance lawsuits. Connecticut v. AEP et al. involves a federal public nuisance claim filed by state attorney generals and conservation groups against utilities for their large contributions to climate change and resistance to lowering greenhouse gas emissions. The case was dismissed by the district court in 2005 and then reversed by the Second Circuit court in 2009. In 2010, the Obama Administration submitted a brief urging the Second Circuit to reconsider its reversal, arguing that the issue should be addressed by the EPA, and courts should stay out.[5] On January 13, 2009, in North Carolina ex rel. Cooper v. Tennessee Valley Authority, North Carolina District Judge Lacy Thornburg declared that air emissions from three coal-fired plants located in eastern Tennessee and one plant located in Alabama, all operated by the Tennessee Valley Authority, are a public nuisance under state law.[6] On July 26th, 2010, the Fourth Circuit Court of Appeals dismissed the lawsuit, setting aside an injunction that would have required the installation of more than a billion dollars worth of emissions control technologies at four TVA plants in Alabama and Tennessee.[7]

Below is a list of coal plant litigation cases in the United States.

Coal plant cases in the United States

Date Petitioner / Plaintiff Respondent / Defendant Plant State Case Documents
Filed Oct 2006, decided Apr 2007 States of MA, CA, CT, IL, ME, NJ, NM, NY, OR, RI, VT, WA; cities of New York, Baltimore, and Washington, D.C.; American Samoa; Center for Biological Diversity, Center for Food Safety, Conservation Law Foundation, Environmental Advocates, Environmental Defense, Friends of the Earth, Greenpeace, International Center for Technology Assessment, National Environmental Trust, NRDC, Sierra Club, Union of Concerned Scientists, U.S. Public Interest Research Group EPA, Alliance of Automobile Manufacturers, National Automobile Dealers Association, Engine Manufacturers Association, Truck Manufacturers Association, CO2 Litigation Group, Utility Air Regulatory Group; states of MI, AK, ID, KS, NE, ND, OH, SD, TX, UT None
(landmark Supreme Court case ruling that EPA can use existing Clean Air Act to regulate greenhouse gases)
Decision [8]
Filed Mar 2007, denied Apr 2007 National Parks Conservation Association, Group Against Smog and Pollution Department of Environmental Protection, Wellington Development Greene Energy Resource Recovery Project PA Filing[10]
Filed Feb 2007, denied Jul 2007 Florida Power & Light None; objections filed by Sierra Club, Save Our Creeks, Florida Wildlife Federation, Environmental Confederation of Southwest Florida, NRDC Glades FL Decision[11]
Filed May 2007, denied Aug 2007 Sierra Club, Valley Watch, American Lung Association of Metropolitan Chicago, Health and Environmental Justice (St. Louis), American Bottom Conservancy EPA, Prairie State Generating Company Prairie State Energy Campus IL Filing[12]
Filed Sept 2006, denied Nov 2007 Energy Northwest None
(seeking siting permit)
Pacific Mountain Energy Center WA Decision[13]
Denied Oct 2007, refiled and dismissed 2008 Sunflower Electric None
(seeking air permit)
Holcomb Expansion KS Decision[14]
Denied Jan 2008, refiled June 2008 Friends of the Chattahoochee, Sierra Club Georgia Department of Natural Resources; Longleaf Energy Associates, a subsidiary of LS Power Longleaf GA Decision,[15] Appeal[16]
Denied Jan 2008 Fresh Energy, Izaak Walton League of America, Union of Concerned Scientists, Minnesota Center for Environmental Advocacy Arizona Public Service Big Stone II SD Decision[17]
Jan 2008 Montana Environmental Information Center Montana Department of Energy Highwood Generating Station MT Case overview[18]
Filed Jul 2007, denied Jan 2008 Sierra Club Illinois EPA Taylorville Energy Center IL Decision[19]
Filed Oct 2007, decided Nov 2008 Sierra Club EPA Bonanza Power Plant addition UT Filing[20], Decision[21]
Filed Feb 2008 Sierra Club, Valley Watch, Save the Valley, Citizen Action Coalition of Indiana Duke Energy Indiana, Indiana Department of Environmental Management Edwardsport Plant IL Filing[22]
Filed Mar 2008 Appalachian Voices, Canary Coalition U.S. DOE, U.S. Department of the Treasury, Deputy Secretary for Clean Coal, Office of Clean Energy Systems Seeking injunction against $1 billion in federal tax credits for 9 "clean coal" demonstration projects Filing[23]
Approved Dec 2008 Southern Environmental Law Center, Environmental Defense Fund, Southern Alliance for Clean Energy, North Carolina Sierra Club, National Parks Conservation Association North Carolina Division of Air Quality Cliffside Plant NC Decision[24]
Denied Feb 2008 Appalachian Power Co., a subsidiary of American Electric Power None
(seeking rate increase to cover costs of plant construction)
Mountaineer WV Decision[25]
Filed July 2008, approved Dec 2008 Southern Alliance for Clean Energy, Environmental Defense Fund, National Parks Conservation Association, NRDC, Sierra Club Duke Energy Carolinas
(seeking rate increase to cover costs of plant construction)
Cliffside Plant NC Filing[26], Decision[27]
Filed Aug 2008 Dine Care, Environmental Defense Fund, Grand Canyon Trust, NRDC, San Juan Citizens Alliance, Sierra Club, WildEarth Guardians EPA Desert Rock NM Filing[28], All docs[29]
Filed and denied Sept 2008 Sierra Club, Coosa River Basin Initiative EPA Bowen Steam Plant GA Decision[30]
Filed July 2008, approved Sept 2008 Commonwealth of Kentucky, Peabody Energy Sierra Club, Valley Watch Thoroughbred Generating Station KY Decision[31]
Denied Oct 2008 Citizen Action Coalition of Indiana, Save the Valley, Valley Watch, Sierra Club Duke Energy Indiana; Indiana Office of Utility Consumer Counselor; Nucor Steel; Indiana Industrial Group; Clean Air Task Force; Indiana Wildlife Federation; Indiana Coal Council Edwardsport Plant IN Decision[32]
Denied Oct 2008 Sevier Power Company Board of Sevier County Commissioners, Sevier County Clerk Sevier Plant UT Decision[33]
Argued Oct 2007, approved Oct 2008 Sierra Club Franklin County Power, Enviropower Franklin County Power Plant IL Decision[34]
Denied Nov 2008 Wisconsin Power & Light, a subsidiary of Alliant Energy None
(seeking permit)
Nelson Dewey Generating Facility WI Decision[35]
Filed Nov 2008 Sunflower Electric State of Kansas, Kansas Department of Health and Environment Holcomb Expansion KS Filing[36]
Filed Dec 2008 American Nurses Association, Chesapeake Bay Foundation, Conservation Law Foundation, Environment America, Environmental Defense Fund, Izaak Walton League of America, Natural Resources Council of Maine, NRDC, Physicians for Social Responsibility, Sierra Club, Ohio Environmental Council, Waterkeeper Alliance EPA Under Clean Air Act, seeking national emissions standards for hazardous air pollutants for new and existing coal- and oil-fired power plants Filing[37]
Decision issued Dec 2008 EPA None
(EPA administrative decision finding that CO2 is not regulated pollutant under PSD permit program)
Denied Jan 2009 Blue Skies Alliance; Texans Protecting Our Water, Environment, and Natural Resources; Environmental Defense Fund Texas Commission on Environmental Quality Sandy Creek Plant TX Decision[39]
Decided Jan 2009 State of North Carolina Tennessee Valley Authority Plants in AL, KY, TN NC Decision[40]
Decided Feb 2009 Sierra Club Northern Michigan University Northern Michigan University Ripley Heating Plant MI Decision[41]

Source: Arnold & Porter LLC, Climate Change Litigation in the U.S., Arnold & Porter, accessed April 2009.



  1. Michael B. Gerrard, "Climate Change and the Environmental Impact Review Process," Natural Resources & Environment, Vol. 22, No. 3, pp. 20-24, Winter 2008.
  2. 2.0 2.1 Jonathan S. Martel, "Climate Change Law and Litigation in the Aftermath of Massachusetts v. EPA," Daily Environment Report, Vol. 7, No. 214, pp. 1-11, November 6, 2007.
  3. "U.S. EPA: Greenhouse Gases Endanger Public Health, Welfare ," Environment News Service, April 17, 2009.
  4. Bryan Walsh,"EPA's CO2 Finding: Putting a Gun to Congress's Head," Time, April 18, 2009.
  5. Jonathan Zasloff, "The SG Brief in Connecticut v. AEP: WORSE than you think" Legal Planet, August 26, 2010.
  6. Trent Taylor, "State of North Carolina v. TVA - A New Era in Public Nusiance Law?" Toxics Law Reporter: A Bureau of National Affairs Report. March 2009.
  7. Bridget Lee, "Fourth Circuit Dismisses Public Nuisance Air Pollution Lawsuit, Sets Aside District Court Injunction Requiring Installation of Emissions Controls" Sive, Paget, & Risel, August 10, 2010.
  8. Massachusetts v. EPA, U.S. Supreme Court, April 2, 2007.
  9. Montana Environmental Information Center v. Johanns, filed July 2007, District Court of the District of Columbia.
  10. Groce v. Pennsylvania Deptartment of Environmental Protection, Commonwealth Court of Pennsylvania, filed March 2007, decided April 2007.
  11. In re Florida Power & Light, Florida Public Service Comission, July 2, 2007.
  12. U.S. Court of Appeals for the 7th Circuit, Aug 2007.
  13. In re Energy Northwest, Washington Energy Facility Site Evaluation Council, November 27, 2007.
  14. Kansas Denial of Sunflower air quality permit, Kansas Department of Health & Environment, October 18, 2007.
  15. Friends of the Chattahoochee v. GA Dept of Natural Resources, Georgia Office of State Administrative Hearings, January 11, 2008.
  16. Friends of the Chattahoochee v. GA Dept of Natural Resources, Superior Court of Fulton County, GA, June 30, 2008.
  17. In Re Otter Tail Power Co, Supreme Court of South Dakota, January 16, 2008.
  18. "Highwood Overview," Montana Environmental Information Center, accessed April 2009.
  19. "In Re Christian Co Generation LLC," Environmental Appeals Board, January 28, 2008.
  20. Petition for Review and Request for Oral Argument,, EPA Environmental Appeals Board, October 1, 2007.
  21. In re Deseret Power Electric Cooperative, Environmental Appeals Board, November 13, 2008.
  22. Sierra Club v. Duke Energy Indiana, Indiana Office of Environmental Adjudication, February 2008.
  23. Appalachian Voices v. Bodman, U.S. District Court for the District of Columbia, March 3, 2008.
  24. Southern Environmental Law Center v. N.C. Division of Air Quality, U.S. District Court for the Western District of North Carolina, December 2, 2008.
  25. In re Appalachian Power Co., Official order, Virginia Corporation Commission, April 14, 2008.
  26. Southern Alliance for Clean Energy v. Duke Energy Carolinas, U.S. District Court for the Western District of North Carolina, July 16, 2008.
  27. Southern Alliance for Clean Energy v. Duke Energy Carolinas, U.S. District Court for the Western District of North Carolina, December 2, 2008.
  28. In re Desert Rock Energy, EPA Environmental Appeals Board, August 13, 2008.
  29. Desert Rock Energy Company, LLC, Environmental Appeals Board, accessed April 2009.
  30. Sierra Club v. EPA, U.S. Court of Appeals for the 11th Circuit, September 2008.
  31. Commonwealth of Kentucky Environmental & Public Protection Cabinet v. Sierra Club, Kentucky Court of Appeals, September 27, 2008.
  32. Citizen Action Coalition of Indiana v. Duke Energy, Court of Appeals of Indiana, October 16, 2008.
  33. Sevier Power Company, LLC, v. The Board of Sevier County Commissioners, Utah Supreme Court, October 17, 2008.
  34. Sierra Club v. Franklin County Power, U.S. Court of Appeals for the 7th Circuit, October 27, 2008.
  35. In re Wisconsin Power & Light, Public Service Commission of Wisconsin, November 11, 2008.
  36. Sunflower Electric v. Kathleen Sebelius, et al., U.S. District Court of Kansas, November 17, 2008.
  37. American Nurses Association, et al. v. EPA, U.S. District Court of D.C., December 18, 2008.
  38. EPA Memorandum, EPA, December 18, 2008.
  39. Blue Skies Alliance v. Texas Commission on Environmental Quality, Court of Appeals of Texas, January 29, 2009.
  40. State of North Carolina v. TVA, U.S. District Court for the Western District of North Carolina, January 13, 2009.
  41. In re Michigan State University Ripley Heating Plant, EPA Environmental Appeals Board, February 18, 2009.

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