In a battle that has lasted well over a year, Sunflower Electric Power Corporation has sued the state of Kansas for refusing—on the basis of CO2 emissions—to issue the air quality permits necessary to build two coal-fired power plants. The lawsuit, filed on Nov. 18, 2008, asks a federal court to stop Kansas officials from blocking Sunflower’s attempt to build the power plants. The lawsuit names Kansas Governor Sebelius, Lt. Governor Parkinson, and Kansas Dept. of Health & Environment (KDHE) Secretary Bremby.

Over a year ago, Sunflower applied to the KDHE for a permit. KDHE technical staff recommended that the agency issue the permit, but Secretary Bremby denied the permit, citing concerns with CO2 emissions. Following Secretary Bremby’s denial, Sunflower attempted to seek legislative approval for the power plants through the Kansas Legislature. The power plants were met with strong bipartisan support in both the House and Senate, and the Legislature passed three separate bills approving the power plants; however, Governor Sebelius vetoed each of the three bills.

Sunflower argues in its complaint that Kansas officials have "discriminated against 400,000 Kansans and over 1.5 million citizens from other states who will be forced to pay the price of this decision for decades to come through higher electric rates." Sunflower believes Secretary Bremby’s denial is improper because CO2 is not currently regulated in Kansas or the United States, and that Bremby continues to issue permits without defining an acceptable level of CO2. Sunflower claims that its permit application is the only one that the KDHE has denied, out of thousands the KDHE receives.

Governor Sebelius justified supporting Bremby's controversial decision because only 15 percent of the energy from the proposed plants would be sold in Kansas, and, Kansas citizens, therefore, could have been forced to deal with the negative consequences of the power plants without reaping a significant portion of the benefits. Sunflower responded that it is legal to export power, and it asserts that the Kansas officials have violated the U.S. Constitution by improperly impeding interstate commerce. Further, Sunflower argues that these new power plants would create hundreds of jobs, help secure energy independence, and be the cleanest plants in the region—emitting 90 percent less CO2 than the average American coal plant.

The outcome of this lawsuit may have vast implications in the energy industry. In the last eighteen months more than a dozen states—including Oklahoma, Florida, and Texas—have decided not to build new coal plants.