sierraclub.org - sierra magazine - may/june 2009 - king coal in court

King Coal in Court

As the Bush era wound down, power companies rushed to build hundreds of new coal-fired power plants. activists picked them off one by one--until a Sierra Club lawyer found a chink in the Law that just might stop them all . . .

By Scott Martelle

The Sizzling Sex Appeal of . . . Coal | The Enemy of the Human Race | The Dirtiest Fuel

The day got off to an inauspicious start. David Bookbinder, Sierra Club staff attorney and chief climate lawyer, parked his car near Washington, D.C.'s Dupont Circle and ran into a hotel to pick up Joanne Spalding. His San Francisco–based colleague was in town to deliver a crucial legal argument in a case seeking to block a proposed coal-fired power plant.

But when they got back to Bookbinder's 1991 Acura, he couldn't unlock the car. "The key hadn't worked for ages on the passenger side," says Spalding. "The same problem had infected the driver's side." Unfazed, Bookbinder opened the rear hatch, asked Spalding to hold his suit coat, and climbed through the car to open the door for his colleague from the inside.

Fortunately, the hearing before the EPA's Environmental Appeals Board was more dignified. The lawyers made it on time to the hearing room, a former Interstate Commerce Commission chamber with a massive relief map of the lower 48 states dominating one wall. A few minutes after 10 a.m., on May 29, 2008, three judges entered, settled in behind the bench, and told Spalding they were ready to hear her explain why the Sierra Club believed the Deseret Power Electric Cooperative should not be allowed to add a 110-megawatt coal-fired electric plant to its Bonanza complex, located on a remote stretch of Native American land in eastern Utah.

The hearing lasted nearly two hours, and Spalding spoke for a quarter of the time. Arguing in favor of the plant was a phalanx of attorneys representing Deseret Power, the electric utility industry, and George W. Bush's EPA. It was an arcane dispute over regulatory definitions before an obscure administrative hearing board involving a relatively small power plant. No major media were on hand; no TV-driven press conference followed. Afterward, Bookbinder, Spalding, and a few others lunched together, then Spalding headed for the airport and her Bay Area home.

Six months later the Environmental Appeals Board issued its ruling in favor of the Sierra Club. The effect was to halt construction of all new coal-fired power plants in the United States.

Then people paid attention.

The Sierra Club has long opposed destructive coal-mining methods like mountaintop removal, and it has contested many coal-fired power plants because of the mercury, sulfur dioxide, and other air pollutants they emit. Recently, however, the Club and other environmental groups became more concerned about the amount of earth-heating carbon dioxide these plants put out--more than one-third of the nation's total. Under the fossil-fuel-friendly Bush administration, the number of such plants was set to rise dramatically, with proposals for 180 new or expanded facilities from the deserts of Nevada to the flats of Florida.

If all or even most of those plants were built, the United States' contribution to global warming would vastly increase. So the Club's National Coal Campaign used every crowbar in the activist toolshed to derail as many as possible. Some of the fights were very public, bringing grassroots coalitions to bear on state-level regulators and elected officials. In pro-business Kansas, for example, local Club activists persuaded state officials to reject Sunflower Electric Power Corporation's plan to greatly expand its Holcomb Station complex. (See "Killing King Coal," March/April.) The state's October 2007 decision was the first time that a proposed coal plant was stopped specifically because of its global-warming potential.

Other anti-coal actions targeted energy companies more directly. Two weeks before the Bonanza case went to court, Mark Kresowik, who runs the corporate accountability arm of the Club's National Coal Campaign, stationed himself outside the Westin Galleria hotel in an upscale Houston shopping district. Most of the people filtering into the hotel lobby--many of them shareholders in Dynegy, one of the country's largest developers of coal-fired power plants--did their best to ignore his sign, whose large block letters proclaimed simply, coal kills.

Kresowik was in Houston that day with 100 other protestors holding Dynegy's shareholders accountable. The goal was to get Dynegy to drop or scale back its plans with LS Power Associates to build six coal-fired plants that together would send 44 million tons of carbon dioxide a year into the atmosphere. Inside the hotel, other Club activists and supporters delivered 10,000 letters and e-mails to CEO Bruce Williamson, urging the firm to redirect its investments into clean-energy sources such as solar and wind.

Key to the corporate accountability campaign was making clear to Dynegy's shareholders the pitfalls of coal-fired power plants, from the environmental costs to the drag on future profits as the federal government moves to regulate CO2. Kresowik and his allies had already met privately with Dynegy officials and had persuaded some key shareholders to introduce a resolution urging a carbon-reduction plan. "Clearly this is something the investors are concerned about and pushing the company on," says Kresowik.

Shortly after the Houston meeting, the state of New York forced Dynegy to disclose to shareholders the risks the company faces from climate change. In January, Williamson abruptly announced that troubled credit markets and regulatory hurdles had forced Dynegy to drop its partnership with LS Power to build the coal-fired plants. Altogether, the Club's campaign has helped kill 96 coal-fired power plants that would have emitted 380 million tons of CO2 annually--6.3 percent of the nation's current output.

The biggest blow to Big Coal, however, came not as part of a carefully planned campaign but because David Bookbinder (the Sierra Club lawyer with the balky car doors) wanted to flesh out his resume. "In the old days, to be an environmental lawyer, you had to have stopped a dam," he says. "Now all the environmental lawyers are stopping coal plants. So I thought I would do a coal plant."

Deseret Power's proposal for a small, 110-MW expansion to its Bonanza plant on the Uintah and Ouray Indian reservation in eastern Utah made an attractive target. Because the site is located on a Native American reservation, the permits are handled by the federal EPA rather than state regulators. The EPA issued a permit for the plant in August 2007. But four months earlier, the U.S. Supreme Court had declared in Massachusetts v. EPA that carbon dioxide was a pollutant subject to the Clean Air Act. That ruling opened the door for Bookbinder and the Sierra Club to try to get the EPA to revise its position on the Bonanza expansion.

In October 2007, Bookbinder filed what Spalding calls "a masterpiece of a petition" with the Environmental Appeals Board. "It was maybe 10 or 11 pages, just a clear, concise argument about why carbon dioxide is already subject to regulation under the Clean Air Act," she says. A month later the board agreed to hear the full appeal. "No one was more surprised than me when they decided to do it," Bookbinder says. But by then he was busy with other projects, and Spalding, who had just finished a long-running legal fight in Louisiana, offered to take over. She went to work, mostly from her home office in El Sobrante, east of San Francisco. The timing wasn't good, as she was having the interior of her house painted. "I would mostly keep my door closed and say, 'Leave me alone.'"

She bounced ideas and arguments off Bookbinder and others, finishing the 50-page brief in late January 2008 and filing it at the Environmental Appeals Board offices near the White House. Spalding argued that Massachusetts v. EPA meant the EPA now had to require Deseret to use the "best available control technology" to minimize carbon dioxide emissions from its proposed project. The Bush EPA maintained that despite the Supreme Court decision, carbon dioxide was not subject to regulation under the Clean Air Act. All the agency had to do was monitor those emissions, the EPA held, not do anything about them.

Before the appeals hearing, Spalding, Bookbinder, and several other Sierra Club lawyers held a moot court, at which Spalding practiced her arguments and the others, acting as judges and opposing counsel, tried to pick them apart. "They make you feel as bad as you possibly can," says Spalding. "I've never come out of a moot court feeling good."

The next day, Spalding went before the real judges: Edward Reich, Kathie Stein, and Anna Wolgast, all veteran EPA enforcement lawyers. She was followed by lawyers for the eight states backing the Club, then counsel for the EPA, Deseret, and finally the Utility Air Regulatory Group, the trade association representing power companies. The judges drilled into each lawyer's argument, sometimes catching them up on specifics they couldn't answer. When it was over, however, Spalding felt cautiously optimistic. On November 13, nine days after Barack Obama won the presidential race, Spalding was back in Washington at a legal conference listening to a panel discussion when her cell phone vibrated. She looked down to see who was calling: Bookbinder.

"I just figured he's calling to see what I'm doing later, so I ignored it," Spalding says. "Then I got another call. I left the room and answered it, and he says, 'Get over to the office right now--we just won Bonanza.'"

The effect of the decision was sweeping and immediate, instantly freezing all active applications to build coal-fired power plants anywhere in the country. "The rationale the EPA used-- 'We're not going to limit carbon dioxide from this plant'--is the same rationale every state has used for every power plant permit out there," Bookbinder explains. So when the appeals board sided with the Sierra Club and gutted that rationale, it forced every applicant to go back and start the permit process from the beginning. "The impact," Bookbinder says, "is a de facto moratorium on new coal plants."

The Age of Coal isn't over yet. More than 8,000 plants in the United States still pump billions of tons of CO2 into the atmosphere each year, and they aren't going away any time soon. King Coal has taken a legal licking, but his armies of attorneys are still working overtime.

In the last days of the Bush administration, his EPA administrator, Stephen Johnson, tried an end run around the appeals board, issuing a "midnight memo" ruling out CO2 controls on new power plants. As soon as Obama was sworn in, Bookbinder, Spalding, and the Sierra Club challenged the ruling.

In February, newly appointed EPA administrator Lisa Jackson announced that the agency would reconsider Johnson's order, effectively killing it. Jackson also signaled that--finally--the EPA planned to use the Clean Air Act to regulate carbon dioxide and other greenhouse gases.

And so the fight against global warming enters a new phase. The Bonanza case marked the end of the last one, in which a small but determined band of activists and attorneys brought the Bush-era coal juggernaut to a halt. In fact, the Sierra Club and others have prevented so many new coal plants from coming on line that the Energy Information Administration has cut its estimate of the country's future carbon output by nearly 10 percent. It's not victory yet, but it's what winning looks like.

Scott Martelle is a former staff writer for the Los Angeles Times and the author of Blood Passion: The Ludlow Massacre and Class War in the American West.

This article was funded by the Sierra Club's National Coal Campaign. For more information, visit sierraclub.org/coal.

Photos, from top: Scott Suchman, Lenny Gonzalez

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