Utah Supreme Court Not So Keen on Post-it Notes

On Friday, December 4, 2009, the Utah Supreme Court voided the state air quality permit for a major coal-fired power plant proposed near Sigurd, Utah. The court vindicated the eight-year battle waged by Sevier County residents to protect their pristine mountain valley from toxic smoke and by Sierra Club members and volunteers who understand the long-term implications of climate instability in Utah and around the world.

In unanimous decisions on two cases brought separately, the court ordered the pollution permit for Sevier Power Co.’s planned 270-megawatt power plant to be sent back to the Utah Division of Air Quality and redone.

In rejecting the permit, the justices determined that:

• The Utah Division of Air Quality Board failed to require the agency to provide sufficient evidence as to why the permit should not have been revoked for not starting construction within the legally-designated time frame;
• State officials failed to adequately consider limits under the Clean Air Act for emissions of nitrogen oxide, a chemical component in smog formation;
• The state failed to consider alternative gasifying technologies to burning coal conventionally as the best way to control emissions, in particular carbon dioxide.

One of the cases was brought before the Supreme Court in 2008 by retirees and Sevier County residents Jim Kennon and Dick Cumiskey, neither of whom is an attorney. The other was filed by the Utah Chapter of the Sierra Club. Both plaintiffs alleged that Sevier Power Company, a subsidiary of NEVCO LLC, and the Utah Division of Air Quality failed to comply with state and federal air pollution regulations and as a result, the permit should be remanded.

Citizen-advocate Jim Kennon shows off the landscape where a coal burner won’t be built.

“We said all along that SPC and the Division of Air Quality were trying to shortchange air quality protections and the health of our citizens,” said Jim Kennon. “That’s why we fought this so hard.” The technology selected by Sevier Power Company, circulating fluidized bed combustion of coal, would have spewed tons of pollutants into an area of farms and houses around Sigurd, not far from Richfield, the county seat.

As evidence of the severe deficiencies in the state’s review of the pollution permit for the plant, Kennon provided the court with a copy of a Post-it Note that was part of the minimal documentation in the Division of Air Quality review of the permit application. The Supreme Court cited that fact in its decision:

 “A record limited to a Post-it note indicating that someone was contacted regarding a review is woefully inadequate to convince a reasonable person that a review took place, let alone that the review was sufficiently rigorous …”

Although the Post-it Note photo accompanying the link to this article is a fanciful reconstruction, it illustrates well the slipshod and cynical approach of the Utah Division of Air Quality.

“What this decision says is that the Clean Air Act matters,” said Joro Walker with Western Resource Advocates, a Boulder, Colo.-based conservation group, who represented the Utah Sierra Club in its case. “The requirements of the law are there for a reason, to protect public health, and the court said you can’t shortchange the law with a miscellaneous Post-it Note.”

Even if Sevier Power gets a new permit, the company will still need a land-use permit from the county. And in 2008, Sevier County voters approved a ballot measure that requires majority voter approval for the land-use permit before the plant can be constructed.

“Nobody around here wants this plant to be built. It will poison our air, threaten our water supplies and destroy our quality of life,” said Kennon, a retired firefighter. “Burning coal is not something that fits in a beautiful place like Sevier County, so if developers try to go forward from here, they still have to contend with the ultimate court, that of the people.”

Clair Jones, conservation coordinator for the Sierra Club in Utah, said that the failure of Sevier Power to get a green light after eight long years is another telltale sign that the public, both locally and nationally, is demanding a transition to cleaner energy sources.

“The decision by the Supreme Court is the latest in a series of decisions by utilities, regulators and courts nationwide questioning the viability, impacts and wisdom of burning coal,” said Jones. “Five years ago, there were more than 150 proposals to build new coal-burning power plants nationwide, but the vast majority of those have either been rejected or abandoned as the country moves instead towards cleaner energy.”

The Associated Press ran a story the day of the court decision quoting a NEVCO attorney, Fred Finlinson, saying the Nevada-based company might chose not to seek another permit because of expense and delay.

This rebuke by the Supreme Court is actually the second handed to the Utah Division of Air Quality and the Air Quality Board in the NEVCO power plant fight. The Utah Chapter of Sierra Club filed an appeal of the original 2004 air quality permit which the Air Quality Board denied because it claimed the Sierra Club did not have standing, or the legal right even to challenge the permit. The court, four of whose five members were appointed by Republican governors, struck down the Air Quality Board’s illegal ploy—once again in a unanimous decision—on November 21, 2006.

These victories would not have been possible without the unflagging and generous support of our counsel Joro Walker, and her team of assisting attorneys, Sean Phelan, Dave Becker and Rob Dubuc.

The fight to stop the Sevier coal plant is documented in a short video released earlier this year. It’s available online at: http://www.youtube.com/watch?v=PZUx6stYJ9U. The court decision may be found at http://www.utcourts.gov/opinions/supopin/SierraClub3120409.pdf. This article was compiled from a press release with additional material written by Mark Clemens and Tim Wagner.

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