Topeka Gov. Kathleen Sebelius' administration has wide latitude to reject a coal-fired electric power project in western Kansas, according to a legal opinion released Friday by Attorney General Paul Morrison.
The opinion launched a flurry of action surrounding the proposal by Sunflower Electric Power Corp. to build twin 700-megawatt plants near Holcomb next to its existing 360-megawatt plant.
The Kansas Department of Health and Environment, which is considering permits for the plant, immediately sought to delay litigation filed by a Lawrence couple who want to stop the plant's construction. And KDHE announced it would make a decision on Sunflower within 30 days.
Meanwhile, Republican legislators who want the plant built said they will appoint a panel next week to find out why the permits for Sunflower Electric haven't been granted yet. And one of them said Sebelius' opposition to the project has politically charged the decision on whether it goes forward.
"The bottom line is that politics has held this up for a ridiculously long time," said Sen. Jay Emler, R-Lindsborg, and chairman of the Senate Utilities Committee.
KDHE is led by Secretary Rod Bremby, a Cabinet official appointed by Sebelius, a Democrat.
"It will be denied and it will be all politics," Emler said.
But KDHE said political considerations would not play into its decision and have had not effect on the length of time it has taken to decide on the permits.
"The secretary is reviewing the permit application and reviewing all the comments that have come in," said KDHE spokesman Joe Blubaugh. Sunflower submitted its air quality permit application on June 1, 2006, and the period for hearings and public comment on the proposal ended in December.
A.G. says KDHE has discretion
Morrison's legal opinion, which was sought by KDHE, allows the agency to consider the effect of unregulated pollutants such as carbon dioxide when granting air quality permits. In other words, Bremby could reject Sunflower's permits "to protect the health of persons or the environment."
And the opinion said KDHE probably couldn't delay the issuance of permits if it decided to try to adopt regulations on carbon dioxide emissions.
Once the decision was announced, Bremby asked a Shawnee County District judge to delay oral arguments scheduled for Oct. 12 in a lawsuit filed by Sarah and Ray Dean. The Lawrence couple sued KDHE to force it to impose restrictions on carbon dioxide emissions, which many scientists believe causes disastrous climate change.
Bremby said KDHE needed more time to analyze whether Morrison's legal opinion would have any impact on the lawsuit.
"Because of the pending litigation and the importance of this issue, we felt it was appropriate to seek an opinion from the attorney general," Bremby said. "This guidance will now be analyzed and deliberated throughout the remainder of the decision-making process."
Absent a decision, however, rhetoric has increased about the proposal.
This week, dozens of Republican legislators wrote KDHE to permit the facility, while Sebelius and Lt. Gov. Mark Parkinson continued to publicly state their opposition.
Environmentalists say pollution from the plant will cause health problems and add to global climate change.
Supporters say the plants will be among the cleanest-burning coal facilities in the nation, and help the western Kansas economy.
After speaking at a renewable energy conference earlier this week, Parkinson told reporters that development of the project would hurt efforts to increase wind energy.
And Sebelius has said one reason she opposes the Sunflower project is because about 90 percent of the energy would be sold out of state.
Emler criticized that reasoning, saying, "If that's the philosophy, let's shut down every farm in the state of Kansas, because we send our products worldwide."
And despite Morrison's legal opinion, Sebelius tried to distance herself from any decision from KDHE.
Her office put out a statement that said: "This opinion applies only to the powers granted to the Secretary of KDHE and clarifies the parameters in which the Secretary has to make his decision. There is no reference to the powers of the Governor in the statute, nor in the opinion."