July 16, 2008

Judge Tosses 2 Lawsuits in Coal Plant Fight

By John Hanna


A legal battle over two proposed coal-fired power plants in southwest Kansas has become less complicated and could be resolved more quickly because of a district judge's action Tuesday.

In Finney County, Judge Philip Vieux dismissed two lawsuits filed by companies seeking to build the plants against the Kansas Department of Health and Environment and Secretary Rod Bremby. He has blocked the plants since October over concerns about global warming, which many scientists link to man-made greenhouse gases.

Sunflower Electric Power Corp., based in Hays, and Tri-State Generation and Transmission Association Inc., of Westminister, Colo., didn't fight the department's attempt to dismiss their lawsuits.

Four more legal challenges are pending elsewhere. The companies' attorneys concluded that having the Finney County cases dismissed would result more quickly in a definitive ruling from the Kansas Supreme Court, said Sunflower spokesman Steve Miller.

"We're interested in speed, to get through all these cases so that we can be set back on the course we were originally on," Miller said.

Department of Health and Environment spokesman Mike Heideman said the agency needed to review the dismissal and didn't have an immediate reaction.

In October, Bremby denied Sunflower an air-quality permit for the two plants, which would be built outside Holcomb, in Finney County. About 86 percent of the new power would go to Tri-State and Amarillo, Texas-based Golden Spread Electric Cooperative.

Sunflower, Tri-State and many state lawmakers contend Bremby overstepped his authority, because the state has no law or regulation setting emissions standards for carbon dioxide.

Vieux said in a telephone interview Tuesday that he concluded he didn't have the authority to hear Sunflower's and Tri-State's lawsuits. He pointed to a 2006 state law that says a challenge to the denial of an air-quality permit goes through the state Court of Appeals, bypassing district courts.

One of the four remaining legal challenges is an administrative appeal from Sunflower asking Bremby to reconsider his decision.

Sunflower and Tri-State each filed a lawsuit with the Court of Appeals. The Finney County Commission and the Garden City Area Chamber of Commerce also filed a lawsuit with the appellate court.

The Kansas Supreme Court stepped in and took over those three cases, but the justices in April said that they wouldn't move forward until the administrative appeal and the two Finney County cases were resolved.

Tri-State spokesman Lee Boughey said his company supports Vieux's decision.

"We believe the proper venue for our case is at the Kansas Court of Appeals and the Kansas Supreme Court," he said.

Meanwhile, the Republican-controlled Legislature tried to enact a law to overturn Bremby's decision, but Democratic Gov. Kathleen Sebelius vetoed three bills. Environmentalists oppose the $3.6 billion project, but it enjoys bipartisan support because many legislators view it as economic development.

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