The legal stakes were raised last week in the ongoing effort to move from dirty coal to clean energy in Michigan. First, the U.S. EPA’s Environmental Appeals Board sided with the Sierra Club on several key issues in its challenge to the Michigan Department of Environmental Quality’s air permit for Northern Michigan University’s proposed new coal-fired boiler. The EPA Environmental Appeals Board’s decision, PSD Appeal No. 08-02, ruled that the Michigan DEQ was required to consider wood burning or other cleaner fuel sources when determining the Best Available Control Technology (BACT) for the proposed coal boiler under the federal Clean Air Act. Renewable wood would produce less sulphur dioxide (SO2) emissions than the coal that Northern Michigan University proposed using, and the DEQ must require wood or other cleaner fuels pursuant to BACT whenever possible. As stated in the decision (pages 15-16):
"BACT analysis calls for a searching review of industry practices and control options, a careful ranking of alternatives, and a final choice able to stand as first and best. If reviewing authorities let slip their rigorous look at “all” appropriate technologies, if the target ever eases from the “maximum degree of reduction” available to something less or more convenient, the result may be somewhat protective, may be superior to some pollution control elsewhere, but it will not be BACT."
The EPA Environmental Appeals Decision further directed the Michigan DEQ to consider requiring BACT for carbon dioxide (CO2) emissions, the primary greenhouse gas that causes global climate change. Overall it’s a great decision, and especially instructive on the key legal requirements for permitting new coal-fired power plants under the Clean Air Act.
Perhaps by coincidence, Michigan Attorney General Mike Cox issued a formal opinion two days later that seemed to ignore both the legal holdings and general regulatory approach of the EPA’s Environmental Appeals Board decision. The Attorney General Opinion, No. 7224, challenged Governor Granholm’s recent Executive Directive regarding the need for the Michigan DEQ to consider less polluting alternatives before permitting new coal-fired power plants to be built. The Executive Directive is based in part on the state’s duty under the Michigan Environmental Protection Act to prevent pollution when “there is a feasible and prudent alternative.” It further relies on the federal Clean Air Act, Section 165(a)(2), for the state’s authority to consider alternatives to proposed sources of air emissions when determining whether or not to grant a permit. The Executive Directive thus requires the Michigan DEQ to consider whether new electricity generation is needed, and if so, if it can be meet with clean renewable sources (wind and solar) or demand-side management (energy efficiency and conservation) before permitting any new coal-fired power plants.
The Attorney General Opinion is flawed in several respects. First, it disputes the need to consider alternatives to new coal plants because the Michigan Environmental Protection Act only requires alternatives when there has been an allegation of pollution, impairment, or destruction of the state’s natural resources. According to Attorney General Cox, no such allegation has been made, despite numerous legal memos and detailed permit comments by environmental groups over the past several months. Of course coal plants pollute (that’s why they need Clean Air Act permits to be built), but the Attorney General Opinion ignores this simple undisputed fact.
The Attorney General Opinion also ignores both the plain language of the federal Clean Air Act and recent federal decisions interpreting the Clean Air Act. As the EPA Environmental Appeals Board made clear in its decision regarding the Northern Michigan University permit, the Michigan DEQ is required to consider cleaner alternatives when considering the Best Available Control Technology (BACT) for proposed coal plants. Further, the Michigan DEQ has the discretion to consider cleaner alternatives presented by the public. In every major permit decision pending before the MDEQ, citizens (including environmental groups) have shown a range of cleaner alternatives to new coal plants (including energy efficiency and renewable technologies), and the Governor is well within her discretion to order the MDEQ to consider those alternatives pursuant to the federal Clean Air Act.
While the law is clear, how this will all play out is not. Attorney General Cox is clearly beginning his campaign for the Governor’s seat by protecting imported and expensive dirty coal, despite contrary legal authority (and the growing public demand for cleaner fuels that are made in Michigan). The Governor has already made clean energy one of her top priorities, and she should not back down now. It may take more litigation to get this all sorted out, especially if the Attorney General continues using legal opinions to defend coal plants while running for higher office.