On September 25, the United States Environmental Protection Agency Appeals Board (“Appeals Board”) in granting a request by the Environmental Protection Agency (“EPA”) to voluntarily remand to the agency a permit it issued under the Clean Air Act for a major coal-fired power project southwest of Farmington, New Mexico, determined that the developer must consider Integrated Gasification Combined Cycle (“IGCC”) technology as a potential alternative in its analysis of Best Available Control Technology (“BACT”).

           In July 2008, the Bush EPA granted a permit for the construction and operation of the Desert Rock Energy Facility, a 1,500 megawatt power plant to be located on tribal property owned by the Navajo Nation.  The facility would be the third-largest power plant in the area which critics claim would emit hundreds of millions of tons of greenhouse gases over its projected lifespan, in addition to other pollutants.  By the time EPA issued the permit in 2008, the agency had considered developers’ application for several years and had deemed the application complete more than five years earlier in 2002.  Approximately 9 months after issuance of the permit, the EPA under President Obama requested that the Appeals Board grant a voluntary remand to the agency to reconsider provisions concerning emission control technologies, particulate emissions levels and the impact of the plant on endangered species. 

           The Board’s remand decision ordered the developer to redo its BACT analysis to consider IGCC as a potential alternative.  The decision contradicts two state court decisions, one in Texas and one in Georgia, both of which ruled that BACT analysis for a conventional coal plant does not have to include IGCC on the ground that IGCC would involve a complete redesign of the plant.  In the Georgia case, the Georgia Supreme Court this week denied a petition for certioriari filed by environmental parties in Longleaf Energy Assocs., LLC v. Friends of the Chatahoochee, Inc. that sought review of the IGCC issue.