By Darren Goode of The Hill

The Environmental Protection Agency is continuing to roll out more 
greenhouse gas emission rules amid stalled debate in Congress and 
numerous legal challenges to the agency’s broader effort to regulate 
the heat-trapping pollutants.

The agency Thursday proposed two rules aimed at helping businesses get 
permits for large new and expanded facilities that would fall under 
emission restrictions that take effect in January.

EPA wants to mandate that permitting programs in 13 states make
 changes to cover greenhouse gas emissions, while other states must
 review their existing permitting authority and tell the agency if such 
emissions are not covered.

The agency is also proposing a federal plan to implement a new
 permitting program for these heat-trapping emissions to cover large
 facilities that would be regulated beginning next year.

 This is intended as a temporary measure until states revise their own 
plans and assume permitting oversight.

“States are best-suited to issue permits to sources of GHG emissions
 and have long-standing experience working together with industrial 
facilities,” according to an EPA press release.

EPA is holding a public hearing on this proposed rule Aug. 25, and 
hopes to finalize both proposals before Jan. 2.

The Clean Air Act requires states to develop implementation plans that 
EPA must approve that include requirements for issuing air permits. 
Since these would be first-time federal requirements for greenhouse
 gas emissions under the Clean Air Act, states might need to modify 
their plans.

The proposed rules also essentially allow EPA to force permitting 
oversight in states that do not comply with the agency’s greenhouse 
gas regulations.

 “Today’s rules will help ensure that these sources will be able to get 
those permits regardless of where they are located,” according to
 EPA’s press release.

Texas recently joined 16 other court challenges to EPA’s “tailoring”
 rule — which was finalized in June and is intended to limit greenhouse
 gas limits to larger facilities.

 Alabama, North Dakota, South Dakota, Mississippi Gov. Haley Barbour
(R), South Carolina and Nebraska filed a joint petition July 30
 challenging the rule. The Louisiana Department of Environmental
 Quality filed a separate lawsuit.

Industry groups challenging the rule 
include the American Forest and Paper Association, National 
Association of Manufacturers, the American Iron and Steel Institute 
and the Portland Cement Association.

Sierra Club filed a legal challenge despite its support for the intent 
of the rule and the timeline for regulating greenhouse gas emissions 
from stationary sources. The group is concerned about the precedent it could 
set for other pollutants.

The Center for Biological Diversity has also challenged it, arguing it
 exempts too many polluters.

As the Kansas Department of Health and Environment considers the new air quality permit request for Sunflower Electric’s proposed 895mw coal-fired power plant, and before KDHE announces the schedule for public hearings, it seems like a good time to ask:  Why are we still paying attention to the whole coal plant debacle?

This blog originally ran over seven consecutive days at www.gpace.org, addressing seven of the most common questions we have heard regarding the ongoing energy policy – coal plant debate in Kansas. As the public comment period approaches for this project, the following questions could be helpful resources as you prepare to write your comment.

Governor Parkinson duped Sunflower with the whole compromise agreement, right?  That coal plant will never get built, even if they get a permit, right?

Well, no.  If Sunflower gets a permit for the current proposal, their odds of getting financing, getting grandfathered by Congressional deal-making, and/or getting the next state administration to give them another coal plant permit (or two) increase significantly.  With coal plant proposals dropping like flies nationwide, the last coal plant built prior to carbon regulation (although risky) might not be a hard sell to struggling capital markets.  As such, a permit in hand is a kind of currency at this point for coal plant developers.

Whether Governor Parkinson knew that, and whether he was concerned about it, is anybody’s guess.

Okay then, Parkinson guaranteed Sunflower a permit, so it’s a done deal, right?  No sense in continuing to fight it.

No, again.  The fundamental result of the settlement agreement between Governor Parkinson and Sunflower Electric – and the subsequent legislation passed by the Kansas Legislature – was simply to concede that they (the governor and pro-coal legislators) could not create a comprehensive energy policy for the state, and to punt the difficult tasks to the federal government.

The governor and the legislature removed even the potential of regulatory and rate oversight over Sunflower by the Kansas Corporation Commission, and stripped the Kansas Department of Health and Environment of any state authority over air quality.  But the truth is, neither the governor, nor the legislature, nor a single utility has the ability to unilaterally ignore the existing enforcement agreement between the State of Kansas and the Environmental Protection Agency.  KDHE still has a binding, legal obligation to enforce the federal Clean Air Act on behalf of EPA.

And EPA has already indicated that it has some serious concerns about the Sunflower permit request under existing CCA regulations.

All right, but don’t we need a new coal plant to “keep the lights on” in Western Kansas?

No, we don’t.  Sunflower Electric reported to the Kansas Corporation Commission in 2008 no gap between its current electrical capacity and projected demand until 2018 – and then it’s only 14 megawatts.  Their projections allow for a required 12% capacity reserve cushion, but do not include any energy efficiency measures to reduce demand or any wind or new sources of renewable energy that could be integrated by or before 2018, nor do they account for the significant (nationwide) decrease in the demand for electricity related to the economic recession.

Throw in Midwest Energy and there’s another 16 mw needed by 2018 (for a total of 30mw). That’s a long way from the 895mw capacity of the proposed coal plant.

There is enough current production capacity in Kansas to meet statewide projected demand for electricity past 2018 (again, without using any energy efficiency measures, bringing no new renewable energy online, and assuming that demand for electricity will increase as projected – which it has not).

Two other things to keep in mind:

• The proposed coal plant will take at least 5 years from the start of construction to even begin to produce electricity.  If there are urgent concerns about the power supply in Western Kansas, why wait so long to deliver “needed” electricity?
• Sunflower Electric had a permit to build a 660mw coal plant (the Sand Sage Project), which they let expire in 2005.  If there is such a critical shortage of electricity in Western Kansas, why didn’t they build that plant, which would be operational and providing electricity by now?

But they’re going to export all that extra electricity, right?

If Sunflower Electric actually owned all that extra electricity, perhaps they could export it.  But they won’t own the extra electricity.  They won’t even own the coal plant.  Tri-State (a Colorado utility) is currently the equity owner of at least 80% of the proposed coal plant itself, and will own 80% of the electricity produced.

In fact, as of 2008, Tri-State had spent $46 million on the Holcomb coal plant proposal, not including land and water rights.  By 2008, Sunflower hadn’t even made a dent in its multi-hundred-million dollar debt to American taxpayers for the first coal plant they built.

It’s like this:  Two people buy a $1000 horse, and one of them pays $1000 while the other one agrees to keep the horse in his stable.  When the $1000-partner wants to ride the horse, she doesn’t pay the owner of the stable for the privilege of riding the horse she already owns.  Likewise, Sunflower Electric can’t export to Tri-State (or anyone else) electricity that Sunflower Electric doesn’t own.

So, if electricity ever moves from the proposed coal plant to Colorado, it will be because a Colorado utility already owns that electricity, not because Sunflower is selling it as an export product.

Okay…but the coal plant will provide needed jobs and economic development to Kansas in the midst of the worst recession in recent memory.  How can we say no to that?

Because it won’t – not anytime soon.  It is absolutely important to create jobs and investment in this recession.  But given all the regulatory, legal, and financial issues with the proposed project, construction won’t begin for at least a couple of years.  So, the construction jobs won’t exist until then.   How does that help Kansans now?

When they were lobbying the legislature, coal plant supporters claimed the proposed project would generate thousands of construction jobs for Kansans and as many as 400 permanent full-time jobs in the state.   But here’s the fine print:

• Tri-State is driving the project, and has a long relationship with its own coal plant builder – and it isn’t a Kansas company, or a union company.

• The specialized nature of most of the construction, and the absence of many of the needed specialized laborers in Kansas, means that the vast majority of the construction jobs will go to temporary workers from out-of-state.  Once construction finishes, they and their money would leave Kansas.

• Well after the settlement agreement was signed, Sunflower Electric quietly revised the projected permanent jobs figure down to 50.

• As of 2008, the Colorado utility that will own most of the plant and its power had given Sunflower Electric $46 million in direct payments, EXCLUDING the purchase of land and water rights in Kansas.  We know coal plant supporters hired a small army of lobbyists and lawyers (many from out of state) and bought a bunch of paid advertising to sell the project, but how many jobs has the coal plant created in Kansas with all that money in the midst of this recession?

While Kansas needed jobs and economic development, coal plant supporters blocked or slowed needed transmission and other energy investments that could have put Kansans to work.  In fact, in the midst of the worst recession in recent memory Sunflower and their allies forced Kansas to say “no” to critical jobs, investment, and revenue from native Kansas fuels and the booming renewable energy sector.  All for some coal plants that will import fuel and construction workers, and send water, electricity, and billions of dollars to other states – long after the current recession has turned toward recovery.

Speaking of renewable energy, don’t we need the coal plant to get transmission lines so that we can export our wind energy?

No, absolutely not.  The bulk of the transmission that would come as part of the coal plant project would be to move electricity from the plant to its primary owners in Colorado – not to improve or enhance the overall transmission grid in Kansas.

An operational coal plant cannot efficiently ramp up or ramp down production of electricity.  Therefore, once a large coal plant is burning coal (already purchased on long-term contracts) to generate electricity, it will flood available transmission with that electricity.  Transmission lines have a finite capacity – that is, they can only move a certain volume of electrons, like a two, four, or eight-lane highway each moves a certain number of vehicles.  As a result, the coal plant will effectively crowd out other sources of electricity, like wind turbines.

Additionally, a regional plan to build high-capacity transmission tapping the vast wind energy reserves of western Kansas and the Texas and Oklahoma panhandles is already underway independent of the proposed coal plant.

Also worth noting: the best markets for Kansas wind energy – with the highest demand for renewably generated electricity, the least ability to meet those demands, and the lowest costs for delivering the electricity – are arguably to the east/southeast, not to the west where there are existing local wind energy reserves and a phase-shift barrier.

Certainly, construction of a power plant will create some transmission infrastructure in order to move electricity toward demand.  But that does not need to be a coal plant – it could be a natural gas plant as well.  And we are seeing development of transmission infrastructure independent of any new power plants.

So it is not accurate to say that Kansas must have this proposed coal plant in order to get transmission infrastructure for wind energy.

Well, if it’s not about the jobs, or energy needs, or exporting electricity, what is the proposed Sunflower Electric coal plant about?

Exactly.  If the proposed coal plant is not the best available way to address jobs, energy needs, or economic development, why would most Kansans support it?

In fact, most Kansans don’t support it, and neither does GPACE.

The coal plant proposal has been advanced and codified into Kansas law using misinformation.  The state has been stripped of its ability to set air quality standards that benefit all Kansans for generations to come, just to allow this one unneeded coal plant to be built.  Those actions open the door for Kansas to become the dumping ground for future coal plants that other states do not want to build or operate.

All this, while our nation struggles to rebuild our economy, create lasting jobs, assert critical leadership in the exploding renewable energy economy, and Kansas squanders its abundant native fuels, including wind and natural gas.

The coal plant project does not fundamentally address Kansas energy needs or economic opportunities.  It will be financed and owned by out-of-state utilities.  Kansas’ dwindling water will be used to make their electricity, while burning imported coal will pollute the lungs of Kansas children.  It will make Kansas more dependent upon imported fuel.  And it will expose Sunflower ratepayers and Kansas taxpayers to increased costs.

Bottom line:  The proposal allows Tri-State Generation and Transmission Association to avoid stiff (and expensive) public opposition to a coal plant in Colorado.  Sunflower Rural Electric Power Corporation in Kansas has a history of questionable risk and business management (with taxpayer bailouts to prove it).  Combine those realities with manufactured partisan political hysteria about energy production and environmental accountability, and you’ve got the current coal plant proposal.

Kansas can do better.  In fact, given economic and environmental realities, we must do better if we are to remain competitive in the world we share.

That’s what we’re fighting for.  Join us.

By Sarah Portlock of the Associated Press

HOUSTON — The U.S. Environmental Protection Agency told two more companies Tuesday to bypass Texas regulators and apply directly with the federal government for their clean-air permits.

The latest development in the battle between Texas and the federal government over clean-air permits for petrochemical companies involves the Chevron Phillips Cedar Bayou plant and Garland Power & Light, a utility in north Texas.

The companies have until Sept. 30 to reapply for the permits directly with the federal agency, according to letters from the EPA to the companies. The EPA has threatened to take over Texas’ air quality program, insisting the state is violating the federal Clean Air Act.

The EPA has rejected nearly 40 operating permits issued by Texas late last year. After Texas failed to meet agency demands that the permits be fixed, it barred Texas from issuing an operating permit to a refinery last month and promised to take similar action for the remaining plants.

“The people in Texas deserve the same protections under the Clean Air Act that the citizens of all the other states do,” Al Armendariz, the EPA’s regional director, told The Associated Press. “We can’t allow any state to implement or to operate a federal program like the federal Clean Air Act in a way that doesn’t follow federal law.”

The debate between Texas and the EPA centers on the state’s so-called flexible permits plan, which sets a general limit on how much pollutants an entire facility can release. The program never was approved by the EPA, and the Clean Air Act requires permits to set limits on each of the dozens of individual protection units inside a plant.

The Texas Commission on Environmental Quality said Tuesday it is confident the flexible permitting program meets the Clean Air Act’s provisions.

“The EPA cannot deny the tremendous progress our state’s air permitting programs have achieved, which is measured in cleaner air across the state,” the state agency said in a statement. “The EPA seems intent on federalizing a successful state program.”

Gov. Rick Perry has said Texas should be lauded as the “poster child” for clean air and pollution regulation. In a statement issued Tuesday, he repeated his contention that “Washington’s latest attempt to intrude on the state’s authority not only undermines Texas’ successful clean air programs, but it will cost the state tens of thousands of jobs.”

On Monday, state officials asked the 5th U.S. Circuit Court of Appeals in New Orleans to review the EPA’s decision in March to disapprove the state’s permitting process for refineries.

(This version CORRECTS that EPA has threatened to take over Texas air permitting, but has not done so.)

More from EPA on the Texas Air Permitting Program

By John D. Montgomery and the Hutchinson News Editorial Board

Ideologues tend to get their blinders on, and politicians like to pander to their base. That explains why State Sen. Tim Huelskamp, R-Fowler, sought and won a provision in the state budget to bar use of state money for implementing federal greenhouse gas regulations.

It was a mostly pointless effort but one Huelskamp probably thought principled and one that would serve the interests of anti-environmentalism rhetoric that would please his conservative base.

It seemed like poetic justice, then, when that very budget provision appeared likely to backfire on Huelskamp, imperiling the Sunflower Electric coal power plant project so important to western Kansas and to conservative, pro-coal legislators. An Environmental Protection Agency administrator expressed concern about the language of the Huelskamp amendment, communicating to the Kansas Department of Health and Environment that if Kansas lacked authority to apply federal requirements, then the EPA could exercise its oversight authority.

In other words, an effort to block EPA regulation actually could have had the effect of inviting more. If the KDHE wasn’t going to regulate air pollution, then the EPA would be forced to do so. And with the way paved with KDHE to approve air permits for the Sunflower Electric expansion of its Holcomb power plant, having the EPA in the mix would have been a concern.

Fortunately, Gov. Mark Parkinson signed the budget bill Thursday but removed that provision along with 10 others he found objectionable or problematic.

Sunflower Electric President Earl Watkins had written to the governor, urging him to remove the budget provision. Westar Energy also wanted it removed.

Huelskamp, however, stuck to his guns, saying Kansans wanted to “combat (President Barack) Obama’s cap-and-tax proposal and resist an out-of-control EPA.”

Conservative politicians will say whatever they think their base wants to hear these days. In the process, they will take empty symbolism over real results. Same goes for trying to pass worthless state legislation to protest federal healthcare reform or saying if you get elected to Congress you will get “Obamacare” repealed.

In the case of the EPA language in the budget bill, it would have been ironic symbolism had that resulted in more, rather than less, EPA regulation and new delays to the Sunflower Electric project.

By Scott Rothschild of The Lawrence Journal World

TOPEKA — Gov. Mark Parkinson on Friday was at war again with the Kansas Chamber of Commerce.

“I find myself once again completely dismayed at the behavior of the Kansas Chamber of Commerce,” Parkinson said in a news release shortly after the Legislature adjourned the 2010 session.

On Thursday, Parkinson made a line-item veto of a provision in the state appropriations bill that would have prevented the state from spending money to enforce potential regulations on greenhouse gas emissions, which scientists have linked to climate change. The measure was authored by state Sen. Tim Huelskamp, R-Fowler, who opposes federal regulation of carbon dioxide emissions.

Parkinson said the provision would have caused a lot of problems, including the possibility that the federal Environmental Protection Agency would take over environmental regulation in Kansas. Three of the state’s largest utilities, including Westar Energy, KCP&L and Sunflower Electric, contacted Parkinson and asked that he veto the provision.

“The Huelskamp proviso was bad public policy. Therefore, I vetoed it, Parkinson said.

But the Kansas Chamber didn’t agree. Jeff Glendening, vice president of political affairs for the Kansas Chamber of Commerce, said of the veto: “We are disappointed to see the governor veto the Huelskamp EPA amendment. The real beneficiaries of today’s veto are radical environmentalists. We salute Senator Huelskamp’s efforts and thank him for offering this amendment on behalf of Kansas businesses.”

Parkinson responded, “I would expect that the Chamber would be thankful that the wishes of its members — companies which employ hundreds of Kansans, contribute to our economy and keep our lights on — were met,” he said. “But instead, they reacted with another political attack and categorized their own members, who were the ‘real beneficiaries’ of this veto, as ‘radical environmentalists.’ ”

Parkinson said the chamber’s rhetoric could hurt Kansas in recruiting business.

“Businesses expect the state chamber to be a common sense, balanced entity. Instead, it has become a partisan political machine that is counter-productive to our efforts to create jobs, grow the economy and move Kansas forward,” he said.

During the legislative session, Parkinson blasted the chamber, which opposed increasing the state sales tax.

Parkinson and a bi-partisan coalition of legislators pushed through a 1-cent increase in the state sales tax, saying it was needed to protect schools, public safety and social services.

Chamber President Kent Beisner said those who supported the tax increase “catered to the needs of those at the government trough.” At the time, Parkinson responded, saying, “It is heartbreaking to think that somebody would equate the disabled, the elderly, school children, veterans, law enforcement and the poor to pigs at a trough.”

By Peggy Fikac of the Houston Chronicle

AUSTIN — Objecting to how Texas regulates air pollution, the U.S. Environmental Protection Agency said Tuesday it is taking over the issuance of an operating permit for a Corpus Christi refinery and could step in at some 39 other major facilities across the state.

“I think the writing will be on the wall — unless we start seeing better permits that address our objections, we are very likely to begin federalizing others,” EPA Regional Administrator Al Armendariz said in a telephone interview. “The state is not following federal Clean Air Act requirements.”

Tuesday’s unprecedented action affected a Flint Hills Resources refinery in Corpus Christi. The EPA’s action means the facility must submit an application with detailed information to the federal agency, which could approve or deny a permit.

The company said it was evaluating a letter from the EPA notifying plant officials of the move.

The list of facilities that could come next the include chemical plants, refineries and other facilities, such as the Goodyear Tire & Rubber plants in Bayport and Houston, the Motiva Enterprises Houston terminal, Rhodia Inc.’s Houston plant, the Chevron Phillips Cedar Bayou facility and Valero’s Texas City facility. Other company permits that have drawn scrutiny from the EPA include Exxon Mobil, Dow Chemical Co. and Formosa Plastics.

“We’ve never objected to 40 permits issued by a state permitting authority, and we’ve not federalized a permit in a state in this manner before unless we were requested to do so by a state or a particular facility,” Armendariz said. “The action we’re taking today, together with the 40 objections, is unprecedented.”

The Texas Commission on Environmental Quality, which issues permits, released a letter from Executive Director Mark R. Vickery to the EPA that lays out the state agency’s efforts and communication with the EPA and said it “remains committed to reaching resolution of Title V (operating permit) objections.”

“We still have significant differences in opinion on a number (of) issues, but processes for moving forward have been developed,” Vickery wrote. “A collaborative effort will continue to be beneficial for both agencies’ limited resources and the continued protection of the environment and public health.”

Flexible permit at issue

Under the Clean Air Act, states must develop plans to meet federal requirements aimed at protecting public health. The EPA has been meeting with the TCEQ and representatives of industry and environmental groups to discuss what the federal agency calls deficiencies with air emission permits.

A major point of contention is the state’s use of a so-called flexible permit, which sets an air emissions cap for an entire facility, but allows leeway for various units within that plant. Regulators and environmental groups say that hinders enforcement of clean-air rules, and Armendariz said that type of permit never has been federally approved.

The EPA also objects to a process that allows a facility to make changes without going through a formal permitting process, Armendariz said.

“I think it’s another step in requiring some of the biggest air pollution sources in Texas to get permits that comply with the Clean Air Act,” said Kelly Haragan, director of the University of Texas’ environmental law clinic, which has been representing “environmental justice” groups in Houston and Corpus Christi on air permitting issues. “Hopefully, those permits will include clear emission limits and better monitoring so that the public and the agencies can track compliance and take enforcement action if facilities aren’t complying.”

Strong objections

Business and industry groups called the EPA action wrongheaded.

“EPA has either been told or been convinced by environmental groups that the permitting program that Texas operates is somehow deficient or not completely consistent with federal law. Our position, and the position of both the chemical manufacturers and refineries that are covered by these state permits, is that those allegations are completely false and without any foundation,” said Stephen Minick, of the Texas Association of Business.

Minick called it “a complete waste” and “very expensive” for companies to have to submit applications to the EPA, predicting that at the end of the process, the federal agency would find they met all applicable requirements.

Hector L. Rivero, Texas Chemical Council president and chief executive officer, said, “This is the first time we are aware of EPA demanding a Texas facility apply directly to the federal government for a Title V (operating) permit. . . . We are incredulous that EPA would encroach on a state regulatory program that has a proven track record of success.”

Armendariz said if TCEQ wants to retain authority over the rest of the permits at issue, state officials must “demonstrate to me in very short order … that these permits they are going to issue are going to be consistent with the Clean Air Act.”

“Some agency has to be issuing permits that are complying with the Clean Air Act,” he said. “If the state of Texas won’t do it, then I have the legal obligation to assume that role.”

From Solveclimate.org

by Leslie Berliant - May 26th, 2010

A last minute amendment to the Kansas budget bill seeks to bar the Environmental Protection Agency (EPA) from regulating carbon dioxide linked to global warming in that state. If adopted, the effort — led by Republican State Sen. Tim Huelskamp — could quickly turn into a lesson in unintended consequences.

Observers say the poorly written measure could end up giving the EPA unprecedented oversight over coal permitting and other regulation of utilities in Kansas, at a time when fossil fuels are under political attack in Washington.

The issue has sparked outrage on both sides of the aisle. But perhaps the most worried are backers of Sunflower Electric Corp.’s proposed coal-burning facility. The plant is two years from breaking ground in the town of Holcomb, and the EPA still must approve its revised permit application.

Supporters had hoped for a 2010 greenlight from EPA. But in a May 18 letter to Kansas Gov. Parkinson, Sunflower CEO L. Earl Watkins, Jr. warned that the new budget amendment could delay the permit until after the 2011 deadline for the EPA to issue its “tailoring rule.” The rule is expected to outline what sources of carbon emitters will be regulated, and it could put the plant in jeopardy.

“Under the budget bill, if KDHE [Kansas Department of Health and Environment] staff is prohibited from addressing GHG [greenhouse gas] regulations, they could be forced to delay issuing permits on large projects until FY 2011 is expired,” the letter said. “Otherwise, EPA would step in and implement the GHG piece of the CAA [Clean Air Act], or simply refuse to allow KDHE to issue permits for which GHG regulations would apply.”

Measure Revives Long-Running Battle over Holcomb Plant

The controversy marks the latest chapter in a three-year struggle between lawmakers, environmental advocates and utilities over new coal-fired construction in Kansas.

In 2007, the proposed 2,100-megawatt Sunflower coal facility in Holcomb, some 60 miles from the Colorado border, became the first in the nation to be denied an air permit by a state agency based on potential dangers that greenhouse gas emissions pose to human health and the environment.

After four follow-up attempts by the Kansas legislature to push through plans for the two large coal plants — and four vetoes by then Gov. Kathleen Sebelius — the Sunflower saga finally seemed to be drawing to a close last May, when a backroom deal was brokered between the utility and the current governor, Mark Parkinson.

The agreement gave Sunflower the greenlight to build a smaller 895-megawatt plant at the site.

But now the state legislature appears to be back at it. And this latest attempt to intervene in the coal plant’s fate may have fractured a key relationship between Sunflower and one of its chief advocates, State Sen. Huelskamp (picture).

Huelskamp, a Republican who is also running for Congress in the Kansas 1st District, added a late amendment to the budget bill that would prevent any state agency from spending money “to plan, draft, propose, promulgate, finalize or implement any rules and regulations pursuant to the Clean Air Act [CAA] involving the greenhouse gases identified” in the EPA’s endangerment finding.

In stripping the Kansas Department of Health and Environment (KDHE) of its right to control global-warming pollution, observers say, EPA would get that authority instead.

The move would have negative consequences for all utilities in Kansas, including Sunflower. The odd twist to the story is that Huelskamp has long been a vocal supporter of Sunflower and has received campaign contributions from the utility.

Opponents of the amendment, which now include Sunflower and Westar Energy, another Kansas utility, agree it paves the way for the EPA to take over the permitting process for new coal plants in Kansas. Fearing “regulation overkill” from the feds, they have asked Governor Parkinson to use his line item veto power to kill the amendment.

The budget hit Parkinson’s desk last Tuesday. He now has until Friday to use his authority to remove the controversial measure. At this late stage, its fate remains uncertain.

According to Stephanie Cole, a spokesperson for the environmental group Sierra Club, many in Kansas believe Parkinson will veto the amendment, but there is no guarantee.

“Parkinson has been unpredictable in terms of his energy and environmental policy,” said Cole. “He’s somewhat of a wild card.”

The Clean Air Act Enters the Mid-Term Elections

For the Sierra Club and other environmental groups largely on the sidelines of the dispute, the purpose of the amendment is hazy. According to Cole, what is clear is that it’s a “risky” political tactic on the part of Huelskamp.

“There is speculation that this could simply be a political move to boost [Huelskamp's] campaign,” Cole said.

“However it’s a very risky move if the goal is to please those who want the coal plant built. While he is describing the EPA as radical, this very amendment could lead to more EPA oversight. It’s a very risky strategy that could backfire.”

Scott Allegrucci, executive director of the Great Plains Alliance for Clean Energy (GPACE), a Topeka-based nonprofit group, agrees that the amendment may have been politically motivated.

“You have to consider that there is an egregious amount of pandering to the far right,” Allegrucci said. “In Kansas we have three parties — Democrats, moderate Republicans and conservative Republicans. The most vitriol is between conservative and moderate Republicans.”

One of Huelskamp’s opponents in the Congressional primary, Rob Wasinger, another Republican, is already making the potential EPA takeover of the state permitting process a talking point in his campaign. He has been accusing Huelskamp and Jim Barnett, who is also running in the primary and has not come out for or against the amendment, of political grandstanding.

Paving the Way for an EPA Takeover in Kansas: Why Utilities are Opposed

Amanda Goodin, an attorney at Earthjustice, a California-based law firm, says the amendment is consistent with legislation coming out of Kansas that aims to circumvent the EPA. But it goes much further by revoking all Kansas authority to administer the CAA under its state implementation plan.

Instead, it would leave the EPA as the direct enforcer and issuer of air permits. This is a situation, Allegrucci says, that both state rights advocates and emitters don’t want to see happen.

“There are all sorts of regulatory and litigation implications,” he says.

According to Cole, federal standards will be enforced in Kansas one way or another, if the past provides any indication. When state agencies previously have been denied this authority, she said, the EPA has stepped in.

“The last time the legislature passed legislation that restricted Secretary [Roderick] Bremby [of KDHE] with a provision that restricted KDHE from enforcing regulations stronger than any federal guidelines, the EPA stepped in,” Cole said.

“It would seem that we are taking a gamble again. Once again the state is risking the EPA stepping in and taking over the state’s control for regulating air quality.”

Clare Gustin, vice president of member services and external affairs for Sunflower, says that the company did not know about the amendment in advance.

“We believe there are some unintended consequences and that there may be some confusion about the status of greenhouse gas regulations and how that impacts all sources of greenhouse gases,” Gustin said.

Watkins, Sunflower’s CEO, likewise recognized the bill’s unintended consequences in his May letter to the governor.

“We appreciate the effort of the Kansas legislators to protect Kansas companies from additional regulation. But additional regulation through the Clean Air Act should not be ignored,” he wrote.

The Intent Behind the Amendment

Allegrucci doesn’t believe that Sunflower was unaware of the amendment in advance. He believes that they simply miscalculated.

“Sunflower’s fingerprints have been on every single piece of legislation that has to do wtih air quality,” Allegrucci said. “I find it difficult to believe that given the amount of money and staffing that Sunflower and their allies have applied to this fight that they didn’t know anything about this amendment.”

Huelskamp’s office did not return SolveClimate’s request for comment, but the Kansas Liberty newspaper quotes Huelskamp as saying that he was determined to “oppose the EPA implementation of their cap-and-trade regulatory scheme at every possible opportunity,” although the EPA does not currently implement any carbon trading mechanism.

Huelskamp also referred to the EPA as “radical” in a Lawrence Journal World article.

Sources say that upon adding the amendment in a late-night budget session, Huelskamp mentioned Sunflower and its regulatory struggles several times during his remarks. Sunflower has been saddled with massive debt to Kansas taxpayers. At one point the figure was upwards of $1 billion. The utility still owes $200 million to the Rural Utilities Service (RUS) for its previous coal plant.

Current permitting costs, as well as the pricey legal and legislative battles to get approval for the new Holcomb-based coal plant, have been bankrolled by Colorado utility Tri-State, which will own 80 percent of the plant and its energy output, says Allegrucci.

“The coal plant is Tri-State’s, not Kansas’…Presumably, they don’t want to face the regulatory hurdles and citizen opposition in Colorado,” said Allegrucci, adding that Tri-State is “funneling tens of millions from out of state to fight that battle.”

While Sunflower is now fighting the amendment, Allegrucci said the intention of the measure may have been to help the company more easily build new coal plants, in the wake of its third RUS restructuring in 2002.

“Under current restructuring, Sunflower is incentivized to build three massive coal plants in Holcomb,” he explained.

“In some ways, the worst possible outcome for Sunflower could be one 900 MW plant which is 80 percent owned by a Colorado utility. It’s always been about a three-plant expansion. They are so in debt that they can’t stop [at the 900-megawatt plant]…We have to consider that the intent may have been to clear the way for future power plants from Sunflower.”

Cole agrees with that assessment.

“In the settlement agreement it states that Sunflower is not allowed to submit an application for any additional coal plants until April 30, 2011,” she said. “However, at one point they were proposing 2,100 megawatts. That’s greatly more than what they need. Clearly, Sunflower has a desire for hosting coal capacity for out-of-state utilities as it’s becoming more difficult to build coal in other states.”

The settlement agreement made between Gov. Parkinson and Sunflower, which approved the smaller plant has been questioned on grounds that the governor may not have had the authority to broker the deal and issue the necessary air permit.

In fact, the EPA stepped in last July and mandated that Sunflower resubmit its request for a permit. The agency also said that Kansans should be given an opportunity to participate in public hearings. KDHE is in the midst of that process, and despite Sunflower’s confidence about the permit, it still must be approved by the EPA.

Allegrucci says that the irony is that if Sunflower and the legislature had not tried to circumvent KDHE through the legislative process in the first place, they might already be through the prescribed regulatory and judicial process for reevaluating a permit denial.

“As a citizen of the state, what’s sad is that this is the third year in a row that Sunflower’s political allies have done whatever they want to do with the legislative process in Kansas in an attempt to host an unnecessary, polluting coal plant that benefits Colorado,” he said.

From 13WOWK

The new rules take effect in July 2011.

The U.S. Environmental Protection Agency Thursday announced its final rule for major greenhouse gas emitters, according to a report in The New York Times.

Under the new rule, new sources that emit at least 10,000 tons of greenhouse gases per year, as well as any existing plants that increase greenhouse gas emissions by 75,000 tons per year, will need to acquire permits, according to the report.

The new rule is the latest example of the Obama administration’s anti-coal attitude, U.S. Rep. Shelley Moore Capito, R-W.Va., said in a news release.

“The EPA’s final rule on regulating greenhouse gas emissions is yet another confirmation of this Administration’s anti-coal sentiments,” she said. “Using the Clean Air Act to regulate emissions will increase operating costs for our state’s electric and coal-fired power plants, which will then be passed on to each and every West Virginian in the form of higher energy bills.

“The EPA’s continued efforts to legislate through regulation are deeply troubling. Congress is the appropriate body to create laws for such regulation, not unelected bureaucrats.”

The new rule will affect coal-fired power plants, refineries, cement manufacturers and others, according to the Times report.

By Scott Rothschild of The Lawrence Journal-World

TOPEKA — A measure tucked into the state budget could prevent Kansas from implementing Environmental Protection Agency rules on greenhouse gases.

The proposal was shepherded through by Sen. Tim Huelskamp, R-Fowler, during the final days of the legislative session that ended last week.

“Instead of supporting sound science and common sense, the EPA has chosen to take the radical path of attempting to regulate carbon dioxide and methane,” said Huelskamp, who also is running for the 1st District congressional seat, currently occupied by Jerry Moran.

“I’m determined to do what is best for our Kansas economy, and that is to oppose the EPA implementation of their cap-and-trade regulatory scheme at every possible opportunity,” he said.

The amendment to the appropriations bill would prohibit any state agency from spending state funds “to plan, draft, propose, promulgate, finalize or implement any rules and regulations pursuant to the Clean Air Act involving the greenhouse gases identified” in the EPA’s endangerment finding.

EPA has declared that climate-changing greenhouse gases endanger human health and welfare and need to be regulated. Those gases include carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride.

The Kansas Department of Health and Environment, which enforces environmental rules, is the target of the amendment, and a major issue before KDHE is a pending permit for an 895-megawatt coal-fired electric power plant in southwest Kansas, known as the Sunflower Electric Power Project.

In 2007, KDHE Secretary Roderick Bremby denied the permit for the project, citing the effects of the proposal’s potential carbon dioxide emissions on health and environment.

In 2008 and 2009, Sunflower Electric and Colorado-based Tri-State Generation and Transmission Association, which would own most of the power from the project, pushed through legislation to overturn Bremby’s decision. Then-Gov. Kathleen Sebelius vetoed that legislation several times.

When Mark Parkinson became governor in 2009, after Sebelius’ departure to join President Barack Obama’s Cabinet, Parkinson made a deal with Sunflower and Tri-State to build a smaller project.

The amendment to the budget bill is now in the hands of Parkinson, who can let it become law or apply a line-item veto to it. Parkinson’s office said the governor has not yet received the appropriations bill but that once he does he will thoroughly consider every proviso before taking any action.

Environmentalists are unhappy with the amendment but, ironically, they are not asking for Parkinson to veto it.

Given Parkinson’s deal-making with Sunflower on the coal plant, they don’t see much help coming from the Statehouse.

“At this point, we’re not inclined to use the legislative process to combat these special interests anymore,” said Stephanie Cole, a spokeswoman for the Kansas chapter of the Sierra Club. “The legislative process is being abused. We will focus on the Sunflower project in the courts.”

Scott Allegrucci, director of the Great Plains Alliance for Clean Energy, said the provision wouldn’t stand up in court and probably would invite more scrutiny from the EPA on Kansas environmental regulation.

“We might consider more direct oversight by EPA a much more responsible and dependable pathway to regulatory certainty in Kansas,” Allegrucci said.

EPA’s Regional Administrator Karl Brooks has already written a letter to Parkinson and Bremby expressing concerns about any provision that would block federal rules.

In that letter, Brooks warns that if a state doesn’t follow federal pollution laws, the EPA will exercise its authority to make sure that projects seeking permits adhere to federal requirements.

2 in a series of 7

As the Kansas Department of Health and Environment considers the new air quality permit request for Sunflower Electric’s proposed 895mw coal-fired power plant, and before KDHE announces the schedule for public hearings, it seems like a good time to ask:  Why are we still paying attention to the whole coal plant proposal?

We’re answering this basic question in a series of seven consecutive blogs/questions.  Here’s the second:

Okay then, Parkinson guaranteed Sunflower a permit, so it’s a done deal, right?  No sense in continuing to fight it.

No, again.  The fundamental result of the settlement agreement between Governor Parkinson and Sunflower Electric – and the subsequent legislation passed by the Kansas Legislature – was simply to concede that they (the governor and pro-coal legislators) could not create a comprehensive energy policy for the state, and to punt the difficult tasks to the federal government.

The governor and the legislature removed even the potential of regulatory and rate oversight over Sunflower by the Kansas Corporation Commission, and stripped the Kansas Department of Health and Environment of any state authority over air quality.  But the truth is, neither the governor, nor the legislature, nor a single utility has the ability to unilaterally ignore the existing enforcement agreement between the State of Kansas and the Environmental Protection Agency.  KDHE still has a binding, legal obligation to enforce the federal Clean Air Act on behalf of EPA.

And EPA has already indicated that it has some serious concerns about the Sunflower permit request under existing CCA regulations.

This is #2 of 7 questions – check back tomorrow for #3.