'/> Uncommon Hours: Kansas Supreme Court hears the Sierra Club’s petition to block Holcomb II
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Sunday, September 2, 2012

Kansas Supreme Court hears the Sierra Club’s petition to block Holcomb II

Kansas Judicial Building
(Photo by Bob Sommer)
The Kansas Department of Health and Environment wants that coal plant
By Bob Sommer

Aug. 31, 2012. Topeka, Kan. – One of the most troubling aspects of the Kansas Supreme Court hearing in the case of Sierra Club versus Robert Moser, et al was underscored by the appearance of Assistant Attorney General Steve R. Fabert before the panel of seven justices on behalf of the Kansas Department of Health and Environment (KDHE). On the face of it having a lawyer from the AG’s office represent the defendant, Dr. Robert Moser, Gov. Sam Brownback’s 2011 appointee to head KDHE, makes perfect sense. But why was the state of Kansas aligned with utility companies – one of them from out-of-state – rather than advocating for the health and environmental concerns of the people of Kansas?
Fabert’s argument highlighted the most curious and without doubt contentious elements of this case – how the permit to build a new coal plant in Kansas came to be issued and the political pressure to build the plant.
This hearing represents the endgame of a long and tortuous effort by Sunflower Electric to build an 895 megawatt coal plant, known as Holcomb II, in western Kansas. Most of the electricity from the proposed plant will be sold to Tri-State Generation and Transmission Association, a Colorado cooperative, while the toxic damage from the plant’s carbon dioxide, nitrous oxide, mercury, sulfur dioxide, and particulate matter emissions will drift across the Kansas plains, contributing millions of tons of greenhouse gases to the atmosphere annually. Not only is there no current need for the additional electricity in Colorado or Kansas, but the financing for the project appears shaky at best.
Fabert was one of three attorneys to speak in favor of the plant’s construction. The other two represented Tri-State and Sunflower Electric. Fabert was there to defend KDHE and the Brownback Administration.
The points of law in question in the hearing regarded the legitimacy of the permit issued by KDHE for the plant’s construction and the standing of the Sierra Club to bring suit. Amanda Goodin, a Senior Associate Attorney for Earthjustice, described these issues in her argument on behalf of the Sierra Club. The permit issued by KDHE, she said, failed to comply with specific requirements of the Clean Air Act and the Kansas Air Quality Act in limiting air pollutants, testing for noxious chemicals like nitrous oxide and sulfur dioxide, and using the best available technology to control emissions. Her oral argument made no mention of the political gamesmanship of Brownback’s predecessor, Gov. Mark Parkinson, in late 2010 to approve the permit.
Yet Fabert tacked straight into those choppy waters.
Describing what he called “allegations of improper political influence” in the Sierra Club’s petition, he told the Court, “It is not clear to me that the issue has been abandoned.”
He was referring to sections of the petition that laid out the sequence of events leading up to the construction permit’s issuance. The permit was first denied by then-KDHE Secretary Roderick Bremby in October 2007 and later approved in a compromise plan reached behind closed doors between Gov. Parkinson and representatives from Sunflower and the Kansas Legislature. No one with scientific expertise on the dangers of coal-plant emissions was present in that room. The meeting, announced abruptly and conducted quickly, took place while a legislative vote loomed that likely would have ended for good Sunflower’s bid to build the plant. (For further background on this deal click here.)
Still, what lay ahead was a public comment period on the plant.
According to the Sierra Club’s petition, “On September 13, 2010, Sunflower directly contacted state legislators and executive officials via email to request that KDHE be urged to limit the public’s opportunity to comment on the permit and to expedite the permitting process.”
Three days later, a spokesman for KDHE announced that the public comment period would last just thirty days. Despite the shortened comment period, nearly 5,900 public comments were submitted to KDHE.
Just over a month later, on Nov. 2, 2010, Secretary Bremby was fired. 
Describing the hurried approval process at a public forum at Kansas City Kansas Community College on Feb. 10, 2011, Bremby said, “The process was not a benign, routine, pristine, pure process. Unfortunately, there were abuses.”
“Look at the influence of lobbying dollars in this process,” he added. “It’s staggering.”
The reason for the hurried comment period in late 2010 was clear. Federal regulations for large-scale construction projects like the Holcomb II coal plant were about to change. Further environmental study would be needed if the permit were delayed until new, more stringent guidelines became law. Conservatives in the Kansas state legislature had no interest in seeing the EPA delay this plant, which they were promoting to the public as an economic boon. The state went so far as to join a 21-state lawsuit to block the imposition of EPA regulations in Kansas. Climate change deniers and conservative interests throughout Kansas, funded by Koch Industries, Peabody Energy, and other sources, have conducted an on-going assault on science and public health since Holcomb II was first proposed over five years ago.
Steve Fabert’s mission in the Kansas Supreme Court was clearly to limit any potential damage the written petition might cause as the seven justices reviewed the case. The background and sequence of events leading up to this hearing were laid out in the petition, which, although it had little discussion in the hearing itself, nonetheless formed part of the case the justices would review.
On the face of it, Fabert was there to defend the impugned reputation of the Brownback and Parkinson administrations. He even—in what can only be characterized as a “Hail Mary” pass—suggested that the state’s treasury would be threatened due to potential litigation over the alleged lack of due process in issuing the permit. So, the justices should infer, financial jeopardy may result if the state has to answer for not following the law. A strange way of justifying why the Kansas Supreme Court should rule in favor of the state—to protect the state against possible liabilities from its own prior alleged illegal action.
Perhaps most troubling and even surreal about Fabert’s portion of the defense was seeing a representative of the state government – specifically there to represent and defend the Kansas Department of Health and Environment(!) recommending, even encouraging and speaking on behalf of, building a new coal plant. If there were ever a doubt that the Brownback and Parkinson administrations had aligned themselves with fossil-fuel interests and against the people they’re supposed to represent and protect in Kansas, this was surely the proof.
Bob Sommer serves on the Executive Committee of the Kansas Sierra Club as Political Chair. His new novel, A Great Fullness, is slated for publication in 2013 by Aqueous Books. He is currently writing a memoir about his late son and his family's experience of ten years of American war.
Links of interest:
Audio archive of the hearing, Aug. 31, 2012. Docket #105,493. Petition for Judicial Review. Sierra Club, Appellant. Robert V. Eye. v. Robert Moser, et al., Appellees. Steve R. Fabert; James D. Oliver; W.C. Blanton.
Sierra Club Petition:
KDHE Secretary Dr. Robert Moser:
Court hearing report, Lawrence Journal World, Aug. 31, 2012:

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