DENVER — A divided appeals court Friday upheld a costly federal plan opposed by Oklahoma Attorney General Scott Pruitt and Oklahoma Gas and Electric Co. to reduce pollutants from two Oklahoma power plants.
The 10th U.S. Circuit Court of Appeals ruled 2-1 that the U.S. Environmental Protection Agency was within its authority to reject a state pollution-control plan for the plants and instead impose a more stringent plan.
The coal-burning plants near Pawnee and Muskogee emit large amounts of pollutants that cause haze and damage air quality in a multistate region. The emissions are subject to EPA regulations for haze and other types of pollution under the federal Clean Air Act.
“We conclude that the EPA has authority to review the state's plan and that it lawfully exercised that authority in rejecting it and promulgating its own,” Chief Judge Mary Beck Briscoe and Judge Carlos Lucero stated in a 51-page decision.
The EPA contends it had a duty to impose its plan because the state plan did not meet federal standards to adequately control emissions.
Pruitt and OG&E had asked the Denver-based court to overturn the EPA plan, contending the agency usurped the state's authority and that the plan will require unnecessary, sizable expenditures on scrubber technology.
The EPA plan would cost the utility, and ultimately its customers, much more than the state plan. Pruitt and OG&E contend the EPA plan would cost more than $1 billion in the next five years. EPA contends that figure is grossly exaggerated.
At issue in the case are parts of the federal Clean Air Act meant to protect visibility at certain national parks and wildlife areas.
The Sierra Club, which was allowed to intervene in the case, contends that the level of emissions in dispute put public health at risk; a contention disputed by Pruitt and OG&E.
The appeals court decision lifted a stay that had kept the EPA plan from taking effect while the appeal by Pruitt, OG&E and industries in Oklahoma that are big users of electricity was pending.
OG&E said, however, it is likely to ask a full panel of the court's judges to reconsider Friday's decision made by a three-judge panel.
“We disagree and are disappointed” with the court's decision, Pruitt said. “We will continue to fight to preserve the ability of Oklahoma stakeholders to create an Oklahoma solution and to protect Oklahoma consumers from excessive and unnecessary utility costs. We are reviewing the decision and considering our options.”
The director of the Oklahoma Chapter of the Sierra Club, David Ocamb, said, “OG&E sends hundreds of millions of dollars out of state each year to import coal and the pollution that comes with it. For a state with abundant, homegrown natural resources, this makes no sense.”
The judge in the minority, Paul Kelly, said, “even under EPA's estimate, (the EPA plan will) result in no appreciable change in visibility. Moreover, there is no evidence this investment will have any effect whatsoever on air quality.”
The judges in the majority said Kelly “raises a number of valid concerns about the EPA's actions and we acknowledge that this is a close case.”
We conclude that the EPA has authority to review the state's plan and that it lawfully exercised that authority in rejecting it and promulgating its own.”