Coal plant litigation

In addition to staging direct actions against coal and backing regulatory changes on the national, state, and local levels, environmental and grassroots groups in the United States also use the legal process to fight global warming pollution from coal-fired power plants. Lawsuits and legal challenges have been effective in stalling or halting the construction of new coal plants, as well as reducing the amount of harmful pollutants emitted by existing coal-fired facilities.

Federal and state regulations provide several avenues for coal plant cases. Litigation has been filed under the National Environmental Policy Act (NEPA), which was signed into law by Richard Nixon on January 1, 2009. This legislation requires the preparation of environmental impact statements (EISs) for major Federal actions that significantly impact the environment. Many U.S. states have adopted their own versions of NEPA and require the environmental impact review for new coal plant proposals. These suits are usually filed when the government has made a decision that the plaintiffs seek to overturn, and often involve the consideration of green house gas emissions and the impacts on climate change.

The Clean Air Act also provides several provisions used to fight proposed and existing plants. The Act established National Ambient Air Quality Standards (NAAQS) to regulate pollutants including sulfur dioxide, particulate matter, nitrogen oxides, ozone, lead, and carbon monoxide. In addition, New Source Review (NSR) regulations require that stationary sources of air pollution, including coal-fired power plants, get permits before construction can begin. Under NSR, Prevention of Significant Deterioration (PSD) permits are required for new coal plants and for existing plants that are being modified in a way that will significantly increase emissions. These permits require the installation of Best Available Control Technology (BACT) for regulated pollutants.

Many recent coal plant cases build from Massachusetts v. EPA. In the landmark 2007 ruling, the Supreme Court voted 5-4 that under the Clean Air Act, the Environmental Protection Agency can regulate carbon dioxide and other greenhouse gases. The Court remanded back to EPA the issue of whether carbon emissions constitute human endangerment. In April 2009, the agency concluded the scientific review ordered by the Court and announced its "endangerment finding," officially declaring that greenhouse gases are pollutants that threaten public health and welfare. EPA's proposed ruling provides significant grounds for continued litigation against coal-fired power plants, athough it remains to be seen whether regulations will come from EPA itself or from Congress in the form of comprehensive climate change legislation.

There have also been state and federal public nuisance lawsuits. Connecticut v. AEP et al. involves a federal public nuisance claim filed by state attorney generals and conservation groups against utilities for their large contributions to climate change and resistance to lowering greenhouse gas emissions. The case was dismissed by the district court in 2005 and then reversed by the Second Circuit court in 2009. In 2010, the Obama Administration submitted a brief urging the Second Circuit to reconsider its reversal, arguing that the issue should be addressed by the EPA, and courts should stay out. On January 13, 2009, in North Carolina ex rel. Cooper v. Tennessee Valley Authority, North Carolina District Judge Lacy Thornburg declared that air emissions from three coal-fired plants located in eastern Tennessee and one plant located in Alabama, all operated by the Tennessee Valley Authority, are a public nuisance under state law. On July 26th, 2010, the Fourth Circuit Court of Appeals dismissed the lawsuit, setting aside an injunction that would have required the installation of more than a billion dollars worth of emissions control technologies at four TVA plants in Alabama and Tennessee.

Below is a list of coal plant litigation cases in the United States.

Coal plant cases in the United States
Source: Arnold & Porter LLC, Climate Change Litigation in the U.S., Arnold & Porter, accessed April 2009.

Related SourceWatch articles

 * Clean Air Act
 * Connecticut v. AEP
 * EPA Deseret ruling
 * Existing Coal Plant Litigation and Controversy
 * Massachusetts v. Environmental Protection Agency
 * North Carolina v. TVA