10/27/2007

Read Gov. Kathleen Sebelius' defense of her administration's denial of an air quality permit that would have allowed construction of two coal-fired power plants in western Kansas and an editorial on the issue on today Opinion page, A7.

By SARAH KESSINGER

Harris News Service

TOPEKA -- Actions by three key officials prompted Kansas to do a 180-degree turn this past year in its approach to addressing global warming.

Just last fall, the Sunflower State sided with the Bush administration as it sought to fend off a lawsuit seeking to get the federal Environmental Protection Agency to limit carbon dioxide emissions from vehicles.

The plaintiffs, led by the state of Massachusetts, argued that CO2 from tailpipes was exacerbating global warming, contributing to harmful climate change.

At the direction of Attorney General Phill Kline, Kansas filed a "friend of the court" brief with eight other states and the automobile industry in defense of the EPA.

Kline didn't mention it to Gov. Kathleen Sebelius, an aide to the governor said this week. And he didn't consult with his state's air quality regulators, Kansas Secretary of Health and Environment Rod Bremby said recently.

Since Kline, a Republican, lost his bid for re-election to Democrat Paul Morrison a year ago, much has changed.

Although it was never an issue in that election, carbon dioxide and global warming now have drawn Kansas into the national spotlight. Last week, Bremby rejected a plan by Sunflower Electric Cooperative of Hays to build two coal-fired electricity generating plants near Holcomb. Kansas thus became the first state to reject a coal plant on the basis of carbon dioxide, a pollutant not regulated at either the federal or state level.

Kansas never withdrew its brief in the Massachusetts federal court case after Morrison took office in January. His spokeswoman, Ashley Anstaett, said that although Morrison did not agree with the brief, he was concerned that "withdrawing or changing positions at that late date could have damaged Kansas' integrity before the U.S. Supreme Court.

"The attorney general would never jeopardize Kansas' reputation before the court over a difference of opinions between administrations," she said via e-mail.

In April, the state ended up on the losing side. In a 5-4 decision, the court found EPA's refusal to regulate CO2 had caused "actual" and "imminent" harm to Massachusetts, primarily in the form of rising sea levels on the coast.

The court's majority also noted that "harms associated with climate change are serious and well recognized."

Outside utilities and environmental groups, the decision drew little notice in Kansas.

"This is an earth-shaking decision," said Steve Miller, spokesman for Sunflower Electric, on the day of the ruling.

"The Sierra Club finds the action of Attorney General Kline to have been very short-sighted and that it could come back to haunt Kansas," said the club's Kansas chapter lobbyist Tom Thompson as he praised the court's action.

In the months since then, Sebelius withdrew her support of Sunflower Electric's plan to build the coal power plants near Holcomb. At the time, state environmental regulators were still weighing whether to issue an air-quality permit for the project.

Attorney General Morrison released an opinion earlier this month saying that Bremby could deny a permit because of health or environment concerns not spelled out in state or federal regulations.

The turnabout culminated in Bremby's decision last week to block the permit for the plants, saying they would emit carbon dioxide that could worsen global warming. He called it a first step in an emerging effort to regulate CO2 in Kansas.

In their decisions, both Bremby and Morrison cited the high court's decision against the EPA. Still, it remains unclear how long state officials have agreed with the ruling.

The decision stood in stark contrast to arguments that attorneys for the state made this summer in a state district court case. They were defending the Kansas Department of Health and Environment from a lawsuit filed by a Lawrence couple calling for carbon regulation.

As in Kline's opposition of the Massachusetts suit, attorneys for Bremby argued in documents asking the court to dismiss the suit that regulation of carbon dioxide is a federal and international issue.

When asked about it, Bremby told legislators at a recent hearing that he was unaware his agency's attorneys had taken that approach. The case remains pending.

Bremby also told legislators that Morrison's office would defend him if the permit issue also goes to court.

Many expect the strength of his precedent-setting decision to be tested as Sunflower officials say they're gearing for a legal fight.

Kansas appears to be the first state to take a step toward regulating carbon-emitting coal plants. California is poised to sue the Bush administration to allow state regulation of tailpipe emissions.

The actions display growing pressure on the federal government to set its own limits on CO2.

As for the EPA, a spokeswoman recently said the agency was formulating rules for automobiles, but not coal plants.

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