AGs air Desert Rock permit concerns

Copyright © 2009
Gallup Independent
By Kathy Helms
Diné Bureau

WINDOW ROCK — The attorneys general of New York, California, Connecticut, Delaware, Maine, Massachusetts, Oregon and Vermont have jointly submitted comments to U.S. Environmental Protection Agency voicing concerns regarding the proposed issuance of an air quality permit for construction of the Desert Rock power plant.

The attorneys general said they believe EPA’s Region 9 cannot properly rely on a memo from former EPA Administrator Stephen L. Johnson, issued about a month before the Bush administration left office, as the basis for refusing to impose the “best available control technology” requirement for carbon dioxide.

“Rushed through without an opportunity for public comment, the Johnson memo was issued in violation of the Administrative Procedure Act,” they said.

Johnson issued the memo Dec. 18, saying that carbon dioxide is not a pollutant “subject to regulation” under the Clean Air Act. The attorneys general said the legal interpretation of “subject to regulation” in the Johnson memo is inconsistent with the act.

“The Johnson memo’s interpretation of the act is erroneous,” they said. “EPA Administrator (Lisa) Jackson’s announcement last month that the agency is reconsidering the Johnson memo reflects an acknowledgment of these concerns.”

Several environmental groups have petitioned EPA to reconsider the Johnson memo and separately filed a petition for review in the D.C. Circuit Court of Appeals. Subsequently, the state of California filed its own challenge. The D.C. Circuit litigation has been stayed pending EPA’s completion of its reconsideration of the Johnson memo. On Feb. 17, Administrator Jackson announced that EPA was granting the petition for reconsideration.

The attorneys general said that Desert Rock is expected to emit 12 million to 13 million tons of carbon dioxide annually and that applying the flawed legal interpretation in the Johnson memo could lead to the addition of several hundred million tons of global warming pollution into the atmosphere over the life of the plant.

“Such a result would be wholly inconsistent with the Obama administration’s pledge to deal with global warming pollution from power plants,” they said.

Desert Rock, a 1,500 megawatt coal-fired power plant to be built on the Navajo Nation near Farmington, will employ state-of-the-art technology and have the most stringent limits on emissions of any coal-fired power plant in the country, according to developers Diné Power Authority and Sithe Global Power of Houston.

The Navajo Nation Council has approved all components necessary for the project to move forward from its end, however, approval of the Navajo Transmission Project, which is needed to transmit any power generated by the plant to areas such as Phoenix and Las Vegas, is back on the table for reconsideration following a challenge by Western Environmental Law Center.

The law center contended that the two projects are “connected actions” and that without the transmission project, Desert Rock cannot be built because there is no way to convey the electricity generated.

The attorneys general asked Region 9 not to make a decision about including a best available control technology limit for carbon dioxide in the Desert Rock permit until EPA headquarters completes its reconsideration of the Johnson memo.

The projected 12-13 million tons of carbon dioxide per year to be emitted by Desert Rock would amount to more than 120-130 million tons over the live of the plant, “thus significantly contributing to the public health and environmental harms associated with global warming,” they said.

Scientists overwhelmingly agree that the global community must reduce the emission of greenhouse gases, including carbon dioxide, to well below 1990 levels within a few decades. The United Nations Intergovernmental Panel on Climate Change recently declared: “If there’s no action before 2012, that’s too late. What we do in the next two to three years will determine our future.”

Twenty three states are participating in a regional cap-and-trade programs to reduce greenhouse gas emissions, and several states now require power plants to meet emission rates that will limit the generation of greenhouse gas emissions.

EPA Region 9 issued the air permit for Desert Rock in July 2008, and at the time, declined to include a best available control technology limit for carbon dioxide emissions, based on the rationale that it lacked the authority to do so given previous agency interpretations, the attorneys general said.