by Phillip Brownlee, for the Kansas.com Editorial Board
Lawmakers backing the proposed coal-fired power plants near Holcomb contend that they want to uphold “the rule of law.” If so, they should allow the appeals process to work, as the rule of law dictates, and not try to circumvent it.
Lawmakers are reviving an attempt that failed three times last legislative session to strip authority from the Kansas Department of Health and Environment to deny environmental permits when an application meets all federal requirements.
That would be a bad move in both the Holcomb case and possible future cases or emergencies in which such authority might be needed.
In arguing in favor of the law change, Mark Calcara, vice president for Sunflower Electric Power Corp., claimed that Kansas Health and Environment Secretary Rod Bremby regulated based on a “whim.” Calcara also said that “if the rule of law is violated, then all of our other freedoms are at risk,” and claimed that tyranny had begun.
Oh, please.
Bremby made a careful, rational judgment that was supported by a 2007 U.S. Supreme Court ruling and a Kansas attorney general opinion affirming his authority to act. It was not the whim of an evil tyrant.
And enough hyperbole about the end of freedom and claims by the Kansas Chamber of Commerce that the Holcomb denial created “regulatory uncertainty” that has harmed the state’s business climate.
Since January 2003, KDHE has issued more than 3,400 air-quality permits and denied only one — the Holcomb plant. Even Westar Energy executives have noted that any regulatory uncertainty is due to the likelihood of federal carbon regulations, not the Holcomb denial.
It’s fine to disagree with Bremby’s decision. But there is a process prescribed by law for contesting it.
Applicants can appeal a ruling through an administrative review process and the court system. That process is under way, as the Kansas Office of Administrative Hearings issued an order in December upholding Bremby’s authority to deny the permit. The Holcomb case is now awaiting action by the Kansas Supreme Court. Sunflower also filed a federal lawsuit, which had a hearing Thursday in Wichita on whether to dismiss it.
In addition to circumventing this established process, stripping authority from the KDHE secretary would be shortsighted, because there could be future health and environmental situations in which the KDHE secretary might need that authority. As Gov. Kathleen Sebelius noted last year, such a move is a “dangerous precedent” that abdicates state authority over the health of citizens.
If lawmakers really do care about the rule of law, they should let the courts decide whether Bremby overstepped his authority. Intervening and changing policy based on a special-interest case is bad lawmaking and isn’t respectful of the law.
Post Footer automatically generated by Add Post Footer Plugin for wordpress.
