High Court Rejects Coal Plant Challenge

The Virginia Supreme Court handed down a ruling Friday that affirms the need for Dominion Virginia Power to build the coal-fired power plant under construction in Wise County.

A coalition of environmental groups had challenged the certificate of need for the plant that was issued by the State Corporation Commission, arguing that a state statute used as the basis for the decision violated the Commerce Clause of the U.S. Constitution – because it set up a preference for Virginia coal.

In a unanimous decision, the state’s high court justices ruled that it did not.

“Dominion is pleased that the Virginia Supreme Court has upheld the State Corporation Commission’s approval of the Virginia City Hybrid Energy Center in Wise County,” the company said in a written statement released Friday. “Completion of the Southwest Virginia power station is crucial to meeting Virginia’s growing power needs. It also is an important step toward achieving a goal of the Virginia Energy Plan to increase in-state energy production.”

Cale Jaffe, the senior attorney who argued the case for the Southern Environmental Law Center, said the organizations he represents – the Southern Appalachian Mountain Stewards, Appalachian Voices, the Chesapeake Climate Action Network and the Virginia chapter of the Sierra Club – will focus their efforts on other pending challenges to the project.

“Obviously you’d prefer to win them all, but we’re encouraged that our Clean Air Act challenges are very much alive,” Jaffe said. “It is definitely full speed ahead on our Clean Air Act challenges.”

At issue in the case decided Friday was a 2007 state law encouraging construction of a coal-fired power plant in coal-rich Southwest Virginia, and whether the phrase “uses Virginia coal” was an unconstitutional preference for in-state products.

“Under this statute, the use of Virginia coal is not favored at the expense of any other source,” according to the opinion written by Justice Donald W. Lemons. “Not only is there no economic incentive to use Virginia coal under the Virginia statutory scheme, there is a statutory disincentive to utilization of Virginia coal if use of out-of-state coal is more economical.”

Jaffe, preparing to argue in Richmond Circuit Court on July 31 against the air permits granted for the plant last year by the State Air Pollution Control Board, said he’s encouraged by a proposed Environmental Protection Agency finding, also released Friday, that greenhouse gases pose a threat to public health and welfare.

The EPA identifies six gases – carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride – as contributors to climate change caused by humans. In a statement released by the EPA, Administrator Lisa P. Jackson said the finding “confirms that greenhouse gas pollution is a serious problem now and for future generations.”

Jaffe said the EPA decision covers the exact argument he plans to present in July: That greenhouse gases should be regulated under the Clean Air Act, and Virginia’s air pollution board violated that act by failing to require strict enough air pollution controls.

Greg Edwards, spokesman for Dominion, declined to speculate on whether the EPA finding would have an impact on the power plant, but said Dominion favors a legislative solution to the greenhouse gas issue.

Jaffe said renewable and cleaner-burning energy options, along with investment in energy efficiency, could provide the state’s energy needs without coal plants like the one being built in Southwest Virginia, and he hopes the courts will void Dominion’s permits.

Edwards said the plant’s air permit “got a thorough hearing through the State Air Pollution Control Board before it was issued, and it’s one of the most stringent if not the most stringent permit ever issued for a power plant in the U.S.”

He said structural steel will begin going up next week for the plant, which is more than 20 percent complete. Dominion expects the plant to begin commercial operation in 2012.

“I think the air permit challenge is critical, but I will say this: That it’s likely to be a long battle,” Jaffe said. “Whoever wins that one [in circuit court], you can be pretty much guaranteed the other side will appeal, and … it might take a couple years for those appeals all to play out.”

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