310 P.3d 360 (Kan. 2013), 105,493, Sierra Club v. Moser

Docket Nº:105,493
Citation:310 P.3d 360, 298 Kan. 22
Opinion Judge:Luckert, J.
Party Name:Sierra Club, Appellant, v. Robert Moser, in his Official Capacity as Acting Secretary of the Kansas Department of Health and Environment, and the Kansas Department of Health and Environment, an Agency of the State of Kansas, Appellees, and Tri-State Generation and Transmission Association, Inc., and Sunflower Electric Power Corporation, Intervenors
Attorney:Amanda W. Goodin, of Earthjustice, of Seattle, Washington, argued the cause, and Todd D. True, of the same office, and Robert V. Eye, of Kauffman & Eye, P.A., of Topeka, were with her on the briefs for appellant. Steve R. Fabert, assistant attorney general, argued the cause, and Jeffrey A. Chanay...
Case Date:October 04, 2013
Court:Supreme Court of Kansas

Page 360

310 P.3d 360 (Kan. 2013)

298 Kan. 22

Sierra Club, Appellant,

v.

Robert Moser, in his Official Capacity as Acting Secretary of the Kansas Department of Health and Environment, and the Kansas Department of Health and Environment, an Agency of the State of Kansas, Appellees, and Tri-State Generation and Transmission Association, Inc., and Sunflower Electric Power Corporation, Intervenors

No. 105,493

Supreme Court of Kansas

October 4, 2013

Page 361

[Copyrighted Material Omitted]

Page 362

[Copyrighted Material Omitted]

Page 363

[Copyrighted Material Omitted]

Page 364

Appeal from Kansas Department of Health and Environment.

SYLLABUS

BY THE COURT

1. A petitioner who challenges a decision by the Kansas Department of Health and Environment to issue a prevention of significant deterioration permit under the federal Clean Air Act, 42 U.S.C. § 7401 et seq. (2006), and the Kansas Air Quality Act, K.S.A. 65-3001 et seq., must establish both statutory and common-law standing in the action for judicial review. To establish statutory standing, the petitioner must satisfy the standing requirements of both the Kansas Air Quality Act, K.S.A. 2012 Supp. 65-3008a(b), and the Kansas Judicial Review Act, K.S.A. 77-611.

2. The standing requirements of the Kansas Air Quality Act, K.S.A. 2012 Supp. 65- 3008a(b), specify that (1) the action must be brought by an individual or an entity meeting the definition of " person" in K.S.A. 2012 Supp. 65-3002(j), (2) the person must have participated in the public comment process or the public hearing, and (3) the person must meet the standing requirements of the Kansas Judicial Review Act, K.S.A. 77-611.

3. A person who appears at a public hearing and submits comments regarding the Kansas Department of Health and Environment's review of a prevention of significant deterioration permit application is a party within the meaning of K.S.A. 77-611(b), one of the provisions in the standing statute of the Kansas Judicial Review Act.

4. An association has standing to sue on behalf of its members when: (1) the members have standing to sue individually; (2) the interests the association seeks to protect are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires participation of individual members. To meet the first prong, the association must show that it or one of its members has suffered actual or threatened injury; that means the association or one of its members must have suffered cognizable injury or have been threatened with an impending, probable injury and the injury or threatened injury must be caused by the complained-of act or omission.

5. A petitioner challenging an administrative agency's action under the Kansas Judicial Review Act, K.S.A. 77-601 et seq., must either identify in the administrative record evidence sufficient to support the petitioner's standing to bring the action or, if there is none because standing was not an issue before the agency, submit additional evidence to the court.

6. A court, when determining if it has jurisdiction to review an agency action under the Kansas Judicial Review Act, K.S.A. 77-601 et seq., may consider affidavits or declarations submitted to the court as evidence of a petitioner's standing to bring the action.

7. A person has standing to challenge a decision by the Kansas Department of Health and Environment to issue a prevention of significant deterioration permit under the federal Clean Air Act, 42 U.S.C. § 7401 et seq., and the Kansas Air Quality Act, K.S.A. 65-3001 et seq., if the person falls within a demographically identifiable segment of the general population that will see an increased risk of adverse health effects if the permit does not comply with statutory and regulatory requirements.

8. An applicant for a prevention of significant deterioration permit under the federal Clean Air Act, 42 U.S.C. § 7401 et seq., and the Kansas Air Quality Act, K.S.A. 65-3001 et seq., must demonstrate that the project will not cause air pollution in excess of any national ambient air quality standard even if the standard has not been incorporated into Kansas' state implementation plan, unless the federal regulatory requirements specifically provide otherwise.

9. An administrative agency's error is not made harmless simply because the agency might cure the error through future action.

10. If legal or factual circumstances have changed during the time between an administrative agency's decision and this court's review of that decision so that a decision of this court on an issue would be unavailing, this court ordinarily will not consider and decide the mooted issue.

11. The use of integrated gasification combined cycle technology would be a redefinition of a project's design where the business purpose of the project includes integration of the project into an existing project that is not designed to use the technology. In such a case, a permitting authority is not required to consider integrated gasification combined cycle technology in its review under 42 U.S.C. § 7475(a)(4) (2006) of the best available control technology.

12. Although a permitting authority may exercise broad discretion in considering clean fuels or innovative technologies when determining the best available control technology for a facility under 42 U.S.C. § 7475(a)(4), changing a fuel source from coal to natural gas would redesign a proposed facility and therefore need not be considered.

13. Under the facts of this case, the permitting authority did not commit error in determining that the use of an ultra-supercritical pulverized coal boiler was not the best available control technology for the proposed facility under 42 U.S.C. § 7475(a)(4), where the record relating to the determination included evidence supporting the permitting authority's findings that the use of ultra-supercritical pulverized coal technology lacked operating history in the United States, information regarding the technology's use and performance in other countries was not accessible or verifiable, and there were concerns about the reliability and maintainability of a facility using the technology.

14. Under the facts of this case, even though the permitting authority did not set the emission limits for nitrogen oxides and particulate matter for the proposed facility, which will be located in an attainment area, at the lowest achievable emission limits, the permitting authority did not err because there was evidence in the record supporting the conclusion that the emission limits included in the permit are consistent with emission limits that will be achievable over the life of the plant with the use of the best available control technology.

15. The Secretary of the Kansas Department of Health and Environment and the Department of Health and Environment were not foreclosed from following the procedural requirements of the federal Clean Air Act, 42 U.S.C. § 7401 et seq. by K.S.A. 2012 Supp. 65-3029(a) or the settlement agreement referred to in that statute.

16. Kansas appellate procedure does not allow a nonparty, including an amicus curiae, to raise an issue for appellate review.

Amanda W. Goodin, of Earthjustice, of Seattle, Washington, argued the cause, and Todd D. True, of the same office, and Robert V. Eye, of Kauffman & Eye, P.A., of Topeka, were with her on the briefs for appellant.

Steve R. Fabert, assistant attorney general, argued the cause, and Jeffrey A. Chanay, deputy attorney general, was with him on the brief for appellees.

James D. Oliver, of Foulston Siefkin LLP, of Overland Park, argued the cause, and Jonathan A. Rhodes, of the same firm, and Howard Kenison and Patrick G. Compton, of Lindquist & Vennum, of Denver, Colorado, were with him on the briefs for intervenor Tri-State Generation and Transmission Association, Inc.; and William L. Wehrun, of Hunton & Williams LLP, of Washington, D.C., argued the cause, and W.C. Blanton, of Husch Blackwell LLP, of Kansas City, Missouri, Henry V. Nickel, of the same firm, and Mark D. Calcara and Mark A. Rondeau, of Watkins Calcara, Chtd., of Great Bend, were with him on the briefs for intervenor Sunflower Electric Power Corporation.

Gerald L. Cross, Jr., of Cross Law Firm, LLC, of Blue Springs, Missouri, was on the brief for amicus curiae Great Plains Alliance for Clean Energy.

OPINION

Page 365

[298 Kan. 25] Luckert, J.

In this appeal, environmental organization Sierra Club seeks judicial review of the decision of the Secretary of the Kansas Department of Health and Environment (KDHE) to issue an air emission source construction permit to Sunflower Electric Power Corporation (Sunflower) for the construction of an 895-megawatt coal- fired power plant, referred to as Holcomb 2, at the [298 Kan. 26] site of Sunflower's existing plant in Holcomb, Holcomb 1. Sierra Club raises four issues and contends the permit fails to comply with the requirements of the federal Clean Air Act (CAA), 42 U.S.C. § 7401 et seq. (2006); implementing federal regulations; the Kansas Air Quality Act (KAQA), K.S.A. 65-3001 et seq. ; and applicable Kansas Administrative Regulations, K.A.R. 28- 19-1 et seq. As a preliminary matter, the KDHE questions whether Sierra Club has standing to challenge the permit.

We hold that Sierra Club has standing to bring this action and has established that the KDHE erroneously interpreted and applied the CAA and the KAQA when it failed to apply the regulations of the federal Environmental Protection Agency (EPA) regarding 1- hour emission limits for nitrogen dioxide and sulfur dioxide during the Holcomb 2 permitting process. These EPA regulations became effective before the Holcomb 2 permit was issued, and we hold that the CAA, KAQA, and implementing regulations required the KDHE to apply the regulations during the permitting process. We therefore reverse the KDHE's action of issuing the permit and remand this...

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