Longleaf Energy Associates v. Friends of the Chattahoochee, the Georgia case that last year became the first legal authority in the nation for imposing carbon dioxide (CO2) limits on power plants, was overruled on Tuesday. The Georgia Court of Appeals reversed the Fulton County Superior Court decision that vacated Longleaf’s permit for a new coal-fired power plant in south Georgia. The Court of Appeals decision represents a significant victory for industry on a number of important points of law.
First, the Court of Appeals confirmed that the Clean Air Act (“CAA”) does not currently regulate CO2 emissions. Although a U.S. Supreme Court decision in 2007 held that CO2 qualifies as an “air pollutant” under the CAA, the Georgia Court of Appeals recognized that EPA has not yet exercised its authority to regulate CO2. The Court noted that EPA’s efforts to regulate CO2 remain ongoing and held that preempting EPA would require the Georgia Environmental Protection Division (“EPD”) to invent CO2 emission controls “in a vacuum.” The Court also expressed concern over the practical effect of the trial court’s decision, stating that it “would engulf a wide range of potential CO2 emitters in Georgia – and Georgia alone – in a flood of litigation over permits, and impose far-reaching economic hardship on the State.”
Second, the Court of Appeals also overturned the trial court’s decision to require Longleaf to consider completely redesigning its facility as part of the permitting process. Specifically, the Court determined that the CAA did not require Longleaf to consider building a coal gasification unit instead of a pulverized coal unit, which would have involved entirely different processes and equipment. Third, the Court rejected a challenge to the permit based on the absence of computer modeling for emissions of fine particulate matter (PM2.5), ruling instead that Longleaf and EPD lawfully followed EPA policy in analyzing the potential impact of the projected emissions from the plant.
The case also involved a number of procedural questions, and Longleaf prevailed on most of those as well. However, the Court of Appeals agreed with the trial court that the administrative law judge that initially reviewed the permit inappropriately deferred to EPD’s judgment on certain issues. As a result, the Court of Appeals remanded the case back to the administrative law judge for a more independent review.
Given the potentially wide-ranging effect of the issues addressed in the case, it drew the attention of the Georgia Chamber of Commerce which, assisted by Troutman Sanders, submitted an amicus brief in support of Longleaf. Over 100 organizations endorsed the Georgia Chamber of Commerce brief, including dozens of major corporations, electric memberships, industry groups, elected officials, and other chambers of commerce.
Those challenging the permit, including Sierra Club, Friends of the Chattahoochee, and others, have promised to appeal the decision to the Georgia Supreme Court. As such, Longleaf must await the conclusion of the appeal process and the resolution of the remanded procedural issue. However, the Court’s remand order simplified the case by eliminating the substantive issues from further consideration and holding that no further hearing or evidence will be necessary to correct the procedural flaw on remand.