Judge refuses to halt DOE Assistance for Mississippi Power’s Kemper Lignite Coal Plant
November 20, 2011 2 Comments
What about the economic impact? The economic impact was not included? Someone needs to bring that forward to a judge as well.
A federal judge in Washington, D.C., has rejected Sierra Club’s attempt to stop the Department of Energy from providing money or a loan guarantee on a 582-MW coal-fired power plant in Mississippi, until it has fully examined environmental impacts (Sierra Club v. U.S. Department of Energy, 11-514 JDB, D.D.C.).
DOE “has not yet made an ‘irreversible and irretrievable commitment of resources’ with respect to loan guarantees,” Bates wrote, referring to DOE’s pending decision on whether to provide guarantees for up to 80 percent of the project cost, estimated to exceed $2 billion.
“Until [DOE] issues a Record of Decision on a guarantee, it is not committed to making one,” Bates said. “The Sierra Club may be correct that the department is closer to making a decision than the agencies were in Wyoming, Center for Biological Diversity, or Nevada.”
But “[u]ntil DOE actually commits to a loan guarantee, it is not relevant that DOE has committed other resources to the Kemper project or that DOE seems to the Sierra Club to have made up its mind,” the judge said. “Furthermore, it is not clear that there will be no further development of the issues here. Although the EIS did discuss a loan guarantee and was entitled ‘final,’ the EIS does not itself commit resources, and the agency could very well undertake further analysis (environmental or otherwise) before actually committing resources or deciding not to commit resources. Finally, it is not relevant that deferred review might make the agency more likely to continue on its course of action or make the ultimate decision harder to undo, since that is true in virtually every situation in which courts defer review on ripeness grounds.”
Arguing for a preliminary injunction, Sierra Club said, “Mississippi Power’s current activities at the construction site are destroying acres of forest, degrading local air quality, and disrupting an otherwise peaceful, rural community. Further construction and eventual operation of the coal plant and strip mine will destroy over 50 miles of streams and thousands of acres of wetlands, industrialize an estimated 13,925 acres of prime farmland and undeveloped forest, and burden surrounding communities with toxic air and water pollution.”
The plaintiffs also asserted that the project “is expected to lead to electricity rate hikes of nearly 50 percent for local residents” and that “[w]hile DOE and Mississippi Power seek to justify this project’s expense and enduring environmental impacts on grounds that it will advance the development of carbon capture technology, the plant will not be required to capture, much less sequester, the 5.7 million tons of carbon dioxide equivalent1 (“CO2e”) that it will generate each year.”
Bates said issuing an injunction would not provide the relief sought by Sierra Club:
“Mississippi Power has provided a sworn affidavit indicating that it will proceed with the Kemper project with or without [Clean Coal Power Initiative] assistance or a loan guarantee. The Sierra Club has produced evidence that the project was unlikely to have commenced without federal funding, but has not made such a showing regarding the continued viability of the project without federal funding. Hence, the Sierra Club has failed to meet its burden of showing that it will be irreparably harmed by DOE’s funding of the Kemper Project absent the injunction it seeks.”
Excerpts from opinion
[T]he court will deny the Sierra Club’s motion for a preliminary injunction and grant the federal defendants’ motion to dismiss. The case shall proceed only on the Sierra Club’s remaining claims.
The Sierra Club’s complaint presents five causes of action. First, the Sierra Club alleges that DOE violated NEPA by selecting the Kemper project for CCPI funding without giving detailed consideration to alternatives other than building the plant proposed by Mississippi Power. Compl. ¶¶ 46-49. Second, the Sierra Club alleges that DOE violated NEPA by selecting the Kemper project for a loan guarantee without giving detailed consideration to alternatives. Compl. ¶¶ 50-53. Third, the Sierra Club alleges that DOE violated NEPA by preparing the EIS with a specified “purpose and need” that was too narrow. Compl. ¶¶ 54-58. Fourth, the Sierra Club alleges that DOE violated NEPA by neglecting to consider the cumulative impact of emissions from the Kemper project in combination with emissions from other coal plants. Compl. ¶¶ 59-62. Fifth, the Sierra Club alleges that DOE violated NEPA by failing to disclose all the environmental impacts of the Kemper project and failing to identify mitigation measures. Compl. ¶¶ 63-64.
Excerpts – Sierra Club brief in support of P.I. motion (5/16/2011)
DOE’s final EIS authorizes “a $270 million grant award and federal loan guarantees of up to $1.9 billion. Without this federal assistance, the Mississippi Power Company, a subsidiary of Southern Company, would be unable to finance its proposed ‘Plant Ratcliffe’—a new 582-megawatt (“MW”) coal plant that will burn lignite coal from a proposed 12,275-acre strip mine. Already, DOE has disbursed nearly $50 million, which is funding ongoing construction work at the Ratcliffe site.”
Endangered Species & Wetlands Report (www.eswr.com)