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Georgia Appeals Court Reverses a Lower Court Decision That a PSD Air Permit Must Contain CO₂ Emission Limits

On July 7, 2009, the Georgia Court of Appeals reversed a lower court's ruling that a prevention of significant deterioration ("PSD") air permit was invalid because it failed to include a limit on a proposed coal-fired power plant's carbon dioxide gas ("CO₂") emissions. (Longleaf Energy v. Friends of the Chattahoochee, Ga. Ct. App., No. A09A0387).

In reversing the lower court's ruling, the Georgia Court of Appeals held that because neither the Clean Air Act nor Georgia state law presently contains regulations controlling CO₂ emissions, including a CO₂ emission limitation in the permit was not required. The appeals court recognized that the federal Environmental Protection Agency ("EPA") recently issued a proposed endangerment finding for greenhouse gases and that Congress is considering legislation to address climate change with CO₂ emissions caps under the proposed American Clean Energy and Security Act. The appeals court, however, emphasized that EPA has not yet issued any final findings and that federal legislation is only pending. The appeals court stated that to require a CO₂ emission limitation in a PSD permit now "would preempt ongoing Congressional and EPA efforts to formulate a CO₂ emissions policy for all the states, and require the [Georgia Environmental Protection Division] to invent in a vacuum CO₂ emission controls for permits." According to the appeals court, this would result "in a flood of litigation over permits, and impose far-reaching economic hardship on the State."

This decision will remain precedent for rejecting citizen suit challenges to PSD permits that do not contain CO₂ emission limitations unless and until EPA issues final regulations controlling CO₂ emissions or federal climate change legislation is signed into law.

To view the Longleaf Energy v. Friends of the Chattahoochee decision, click here.

For questions regarding this Environmental Update, please contact any of the attorneys in Schiff Hardin's Environmental Group.

RECENT ENVIRONMENTAL PUBLICATIONS

"EPA Lists 44 "High Hazard Potential" Coal Ash Sites," Environmental Update (June 30, 2009)
"Climate Bill Narrowly Passes in U.S. House," Environmental Update (June 29, 2009)
"EPA Has No Permitting Role When The Army Corps Issues Fill Permits," Environmental Update (June 26, 2009)
"State-Issued "No Further Remediation" Letter May Not Defeat RCRA Claims," Environmental Update (June 23, 2009)

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