Lack of emissions rules didn’t stop Kansas from acting

By Phoebe Sweet

Saturday, Nov. 3, 2007 | 7:27 a.m.

Environmentalists call it a watershed moment.

Republicans and coal advocates cry political foul.

Power plant developers threaten protracted legal battles.

All because Kansas last month became the first state ever to deny an air permit for a coal-fired power plant on the basis of health and environmental risks from carbon dioxide pollution.

Meanwhile, Nevada's own Environmental Protection Division - which is considering whether to approve three similar permits - has donned the blinders and earmuffs in classic see no evil, hear no evil style.

Environmental law and power plant proposals in Nevada and Kansas share many similarities.

Two of the three plants in Nevada are "merchant plants" that will sell their power to utilities or on the open market , potentially outside the state. The Sunflower Electric Power plant denied an air permit last month would have sold 85 percent of its electricity outside of Kansas.

"It's politically easier to deny this coal plant permit because the power was going to Colorado," said Charles Benjamin, who has fought coal-fired power plant developers in Kansas and Nevada with the environmental group Western Resource Advocates.

But perhaps more important than politics or corporate relations is environmental law.

Nevada, Kansas and federal law all have broad definitions of air pollution that include the greenhouse gas carbon dioxide and allow environmental protection agencies to regulate their emissions. Experts say most states have the same definition.

But in neither Kansas nor Nevada are carbon dioxide emissions limited. Congress is considering carbon regulations at the federal level, but no laws exist now.

And the legality of the Kansas decision is still in question.

Opponents are questioning the interpretation of a federal provision that Kansas Health and Environment Secretary Roderick Bremby used in making his decision to deny an air permit. And the power plant developers say they will challenge the decision in court.

There is one major difference between the two states, according to Dante Pistone, a spokesman for Nevada's Environmental Protection Division. While the Kansas Health and Environment Department thinks it has the authority to deny a permit despite having no emissions standards in place, the Nevada agency does not.

According to Pistone, the attorney general's office has warned the agency that it could not make a similar, unilateral decision "because there are no regulations or standards in place dealing with greenhouse gases."