A unanimous Georgia Supreme Court denied a petition for certiorari filed by the Sierra Club and a coalition of environmental groups who are challenging the construction of the first coal-fired power plant to be built in Georgia in two decades. In denying the groups’ request, the Court let stand the July 7, 2009 ruling by the Georgia Court of Appeals, which held, among other things, that the proposed 1,200 megawatt plant is not required to limit carbon dioxide emissions.
This decision by the Georgia Supreme Court is the latest in the long-running – and still continuing – appeal of the permitting of the Longleaf Energy Station by the Georgia Environmental Protection Division (EPD). In addition to challenging the ruling that CO2 emissions are not required to be regulated under the Georgia Air Quality Control Act, the petition sought review of three other issues addressed by the July 7 ruling: the approval of the use of PM10 modeling as a surrogate for demonstrating compliance with PM2.5 particulate matter standards, the approval of EPD’s decision not to require Longleaf to consider integrated gasification combined cycle technology in lieu of pulverized coal technology, and the requirement that those challenging EPD decisions must comply with EPD’s pleading rules.
With the Georgia Supreme Court’s denial of the petition, the appeal will now return to the administrative law judge who issued the initial 108-page decision in early 2008 and who, as directed by the Court of Appeals, must reconsider her conclusions of law based on a standard of review that provides no deference to EPD’s decisions. Sierra Club’s attorney, however, has indicated that the groups may request review by the U.S. Supreme Court.
Alston & Bird represented the Georgia Industry Environmental Coalition as amicus curiae at the Court of Appeals in support of the Georgia EPD's permitting action.