On June 30, 2008, Judge Moore of Georgia’s Fulton County Superior Court revoked a permit for construction of a proposed 1200-megawatt coal-fired power plant in the state. Ruling in favor of the plaintiffs, Judge Moore found that the permit filed by Longleaf Energy and approved by the Georgia Environmental Protection Division failed to consider the best available pollution control technology (BACT) to mitigate harm caused by the proposed plant’s estimated annual emissions of 8-9 million tons of CO2. The defense had argued that a BACT analysis was unnecessary because CO2 is not a pollutant subject to regulation under the Clean Air Act (CAA). In rejecting the defense’s argument, Judge Moore cited the U.S. Supreme Court’s April, 2007 decision in Massachusetts v. EPA, in which the Court found that CO2 does qualify as a harmful pollutant that the United States Environmental Protection Agency must consider regulating under the CAA. The ruling in Georgia marks the first instance in which a permit has been revoked in court due to concerns over CO2 emissions. The defendants plan to appeal the ruling.
Our Analysis of Massachusetts v. EPA