Abby L. Harvey
GHG Monitor
12/19/2014
The Sierra Club has filed an appeal to a November summary judgment granted by the Illinois Pollution Control Board in favor of the FutureGen 2.0 project under development in Meredosia, Ill. In the Dec. 11 appeal, the Sierra Club states that the November ruling “was clearly erroneous, arbitrary and capricious, against the manifest weight of the evidence, and/or inconsistent with applicable law.” The filing is no surprise, as the Sierra Club stated their intent to appeal immediately following the summary judgment. “The Illinois Pollution Control Board gave the Sierra Club its fair day in court before handing them a resounding defeat in November. The Sierra Club’s appeal stands in the way of environmental progress, good paying jobs for Illinois citizens, and what the University of Illinois estimates as $12 [billion] in economic benefits to the State,” FutureGen Alliance CEO, Ken Humphreys said in a statement regarding the appeal this week. Earlier this month Humphreys stated that such legal actions are a threat to the timeline of the project, saying that they would “unquestionably delay a planned ramp-up in ongoing construction activities.”
The original Sierra Club suit had argued that the incorrect permit had been acquired by the project and as a result the project was in violation of Section 9.1(d) of the Illinois Environmental Protection Act, which requires that any project that seeks to construct or modify various structures, including power plants, must first obtain a permit to do so from the Illinois Environmental Protection Agency. In its decision, though, the Pollution Control Board said the IEPA had previously considered the Sierra Club’s argument. “IEPA issued a construction permit after reviewing the application and comments, including comments from Sierra Club that echo its allegation and arguments here. IEPA determined that a minor source construction permit was the correct permit,” the decision says. “Based on the undisputed facts, the Board finds that respondents have not violated Section 9.1(d) of the Act,” Pollution Control Board Chairman Deanna Glosser wrote in the decision.
Once completed, the FutureGen project will upgrade an existing coal burning power plant with oxy-combustion technology which will capture CO2 at a rate of roughly 1.1 million tons annually, according to a FutureGen Alliance fact sheet. The suit had been a notable threat to the project, though, which faces a fast approaching spending deadline of September 2015 as it is funded, in part, by the American Recovery and Reinvestment Act. That spending deadline, combined with the Sierra Club lawsuit, had put the project in a bind, forcing the FutureGen Alliance to file a Motion to Expedite in July.
Legal Action Piling Up
The Sierra Club appeal is the second challenge that the FutureGen Alliance will face in coming months following an announcement earlier this month that a lawsuit challenging the Illinois Commerce Commission’s authority to require other state utilities to foot some of the bill for the costly project will come before the Illinois Supreme Court. In that case, the Illinois Competitive Energy Association, an Illinois-based trade association of competitive energy suppliers, challenged a sourcing agreement approved by the Illinois Commerce Commission in late 2012. A state appellate court had ruled in favor of the FutureGen 2.0 sourcing agreement in July in a 2-1 decision finding that “the approach adopted by the Commission in the instant case was within its statutory authority and was a cost-effective alternative to administering the nearly 70 individual sourcing agreements that would result from requiring each alternative retail electric supplier to have its own agreement.”
