 |
| Kansas Judicial Building (Photo by Bob Sommer) |
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.
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:
http://www2.ljworld.com/news/2012/aug/31/statehouse-live-health-concerns-raised-hearing-pro/http://cjonline.com/news/2012-08-31/supreme-court-hears-coal-plant-lawsuit-claims
Bob Sommer, "How
a bill became a deal: Kansas Gov. Mark Parkinson's 'compromise' with Sunflower
Electric," Uncommon Hours, June 25,
2009.
