Longleaf Energy v. Friends of Chattahoochee, A09A0387.

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: Andrews
• Citation: 298 Ga. App. 753,681 S.E.2d 203
• Parties: LONGLEAF ENERGY ASSOCIATES, LLC v. FRIENDS OF the CHATTAHOOCHEE, INC. et al. Couch v. Friends of the Chattahoochee Inc. et al.
• Docket Number: No. A09A0387.,No. A09A0388.,A09A0387.,A09A0388.
• Decision Date: 07 July 2009

681 S.E.2d 203 298 Ga. App. 753 LONGLEAF ENERGY ASSOCIATES, LLC
v.
FRIENDS OF the CHATTAHOOCHEE, INC. et al.
Couch
v.
Friends of the Chattahoochee Inc. et al. No. A09A0387. No. A09A0388. Court of Appeals of Georgia. July 7, 2009.

[681 S.E.2d 205]

Patricia T. Barmeyer, W. Ray Persons, John C. Bottini, Atlanta, for appellant(case no. A09A0387).

Thurbert E. Baker, Atty., Gen., Isaac Byrd, Deputy Atty. Gen., Margaret K. Eckrote, Diane L DeShazo, John E. Hennelly, Asst. Attys., Gen., for appellant (case no. A09A0388).

Parks, Chesin & Walbert, David Frank Walbert, Justine I Thompson, Atlanta, Pamela M. Orenstein for appellees.

Alston & Bird, Douglas E. Cloud, Jonathan E. Wells, Peter M. Degnan, Atlanta, Autry, Horton & Cole, Charles T. Autry, Tucker, G. Mark Cole, Troutman Sanders, Margaret C. Campbell, John J. Dalton, Daniel S. Reinhardt, Norman L. Underwood, Atlanta, The Gordon Law Firm, Walter J. Gordon, Sr., Hartwell, Tisinger Vance, Richard T. Tisinger, Steven T. Minor, Carrollton, Jones Day, G. Graham Holden, Charles A. Perry, Balch & Bingham, Michael J. Bowers, Atlanta, Brinson, Askew, Berry, Seigler, Richardson & Davis, Robert M. Brinson, Rome, Norman S. Fletcher, McNatt, Greene & Peterson, Hugh B. McNatt, Sutherland, Asbill & Brennan, Herbert J. Short, Randall D. Quintrell, Bridges & Wright, Hal Wright, Schulten, Ward & Turner, Martin A. Shelton, Jennifer L. Pennington, Atlanta, Jonathan L. Schwartz, amici curiae.

ANDREWS, Presiding Judge.

These appeals are from a Fulton County Superior Court judgment invalidating an air quality permit issued by the Environmental Protection Division (EPD) of the Georgia Department of Natural Resources to Longleaf Energy Associates, LLC, for the construction of a pulverized coal-fired electric power plant in Early County.¹ The Court upheld challenges to the permit brought by Friends of the Chattahoochee, Inc. and the Sierra Club (the Challengers), and ruled that the permit violated the Georgia Air Quality Act (GAQA) (OCGA § 12-9-1 et seq.) and the federal Clean Air Act (CAA) (42 USC § 7401 et seq.) on various grounds. The court also ruled that other errors occurred on administrative review. The most consequential ruling was the superior court's conclusion that the permit was invalid because it failed to include a limit on the power plant's carbon dioxide gas (CO₂) emissions. Because neither the CAA nor the GAQA contain regulations controlling CO₂ emissions, we reverse this ruling and hold that the permit was not required to include a CO₂ emission limitation. For the reasons which follow, we reverse the superior court judgment on this and other grounds, affirm in part, and remand the case with directions.

1. We begin with an overview of the statutes and regulations at issue and the procedural history of the case.

The CAA sets forth a regulatory scheme designed to protect and enhance the Nation's

681 S.E.2d 206

air quality through joint federal and state participation. Sierra Club v. Ga. Power Co., 443 F.3d 1346, 1348 (11th Cir.2006). Pursuant to the CAA, the federal Environmental Protection Agency (EPA) sets national ambient air quality standards (NAAQS) for regulated pollutants, and each state submits for EPA approval a State Implementation Plan (SIP) designed to ensure that the state's air quality achieves compliance with the federal standards. 42 USC §§ 7408(a); 7409(a); 7410(a). To be approved by the EPA, a SIP must "include enforceable emission limitations and other control measures, means, or techniques ... as may be necessary or appropriate to meet the applicable requirements of [the CAA]." 42 USC § 7410(a)(2)(A); 40 CFR § 52.02(a). Georgia's EPA-approved SIP is administered by the Georgia EPD pursuant to provisions in the GAQA and the Georgia Rules and Regulations for Air Quality Control (Ga. Comp. R. and Regs. r. 391-3-1 et seq.) adopted under the authority of the GAQA. 40 CFR §§ 52.570; 52.572. We collectively refer to these Georgia statutes, rules, and regulations as the Georgia SIP. The Georgia SIP implements CAA requirements that, prior to construction of a new major facility with the potential to emit certain defined levels of regulated air pollutants in an area where air quality is in attainment of the NAAQS, the facility must obtain an air quality permit under the prevention of significant deterioration (PSD) program. OCGA §§ 12-9-5(b); 12-9-6(b); Ga. Comp. R. & Regs. r. 391-3-1-.02(1)(c), (7); 42 USC § 7470 et seq.; 40 CFR § 52.21. The PSD program is part of the CAA's new source review (NSR) program and is designed to prevent new pollution sources from degrading air quality in areas where the air meets the NAAQS. To accomplish this, the PSD program requires that the new facility be constructed using the "best available control technology" (BACT) for each regulated pollutant which the facility has the potential to emit in significant amounts. 42 USC §§ 7475(a)(4); 7479(3); 40 CFR § 52.21(j)(2); Ga. Comp. R. & Regs. r. 391-3-1-.02(7)(b)7. It is undisputed that the proposed Longleaf power plant is a facility subject to the PSD program implemented in the Georgia SIP.

Under the approved Georgia SIP, the EPD is responsible for reviewing PSD permit applications and issuing permits. Sierra Club, 443 F.3d at 1349; Sierra Club v. Johnson, 541 F.3d 1257, 1260-1261 (11th Cir.2008). On November 22, 2004, Longleaf applied to the EPD for a preconstruction permit for its power plant under the PSD permit program. The EPD considered the application over a period of 30 months, made various revisions to the conditions of the proposed permit, gave public notice, and responded to public comments. On May 14, 2007, the EPD issued an air quality permit to Longleaf under the PSD program. Pursuant to OCGA §§ 12-9-15 and 12-2-2(c)(2), the Challengers then pursued state administrative and judicial review of the EPD-issued permit. 42 U.S.C. § 7661a (b)(6). The Challengers filed a petition challenging issuance of the permit on numerous grounds and invoking the right to a hearing before an administrative law judge (ALJ) of the Office of State Administrative Hearings (OCGA § 50-13-40 et seq.) in accordance with the Georgia Administrative Procedure Act (OCGA § 50-13-1 et seq.). The ALJ conducted a review of the permit and the challenges, culminating in a 21-day evidentiary hearing. During the review process, the ALJ dismissed some of the challengers' grounds; rendered summary determination in favor of the EPD and Longleaf on other grounds; and denied the Challengers' motions seeking to amend the petition to raise a new issue during the hearing. On January 11, 2008, the ALJ entered a 108-page final decision affirming issuance of the permit. Pursuant to OCGA §§ 12-9-15 and 50-13-19, the Challengers filed in the Fulton County Superior Court a petition for judicial review of the ALJ's final decision and the pre-decision orders. In its final judgment entered on June 30, 2008, the superior court ruled on various grounds that the ALJ erred in affirming the EPD's issuance of the permit. We granted applications filed by the EPD and Longleaf for discretionary appeals from the superior court's final judgment. OCGA §§ 5-6-35(a)(1); 50-13-20. In addressing claimed errors of law in the superior court's ruling, we conduct a de novo review.

681 S.E.2d 207

Gen. Motors Acceptance Corp. v. Jackson, 247 Ga.App. 141, 542 S.E.2d 538 (2000); Gladowski v. Dept. of Family, etc. Svcs., 281 Ga.App. 299, 635 S.E.2d 886 (2006).

2. The EPD and Longleaf contend that the superior court erred by ruling that the EPD was required to include a CO₂ emission limitation in the PSD permit.

As set forth above, the PSD permit portion of the NSR program requires use of BACT for regulated pollutants. It is undisputed that the CAA requires use of BACT "for each regulated NSR pollutant that [the facility] would have the potential to emit in significant amounts," and that a "regulated NSR pollutant" is defined to include any pollutant that "otherwise is subject to regulation under the [CAA]." Ga. Comp. R. & Regs. r. 391-3-1-.02(7)(a)2 (incorporating 40 CFR § 52.21(b)(50)(iv) by reference); Ga. Comp. R. & Regs. r. 391-3-1-.02(7)(b)7 (incorporating 40 CFR § 52.21(j)(2) by reference). The superior court ruled that CO₂ was a "regulated NSR pollutant" because it was "subject to regulation under the CAA," and that the PSD permit was invalid because it did not require a BACT emission limit to control the power plant's CO₂ emissions. To reach this conclusion the Superior Court reasoned that the recent decision in Massachusetts v. Environmental Protection Agency, 549 U.S. 497, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007), which found that CO₂ qualifies as an air pollutant under the CAA, established that CO₂ is a pollutant "subject to regulation under the CAA" for purposes of the PSD permit. The court also found that regulations monitoring or reporting CO₂, but not controlling or limiting CO₂ emissions under the CAA, establish that CO₂ is a pollutant "subject to regulation under the CAA" for purposes of the PSD permit. The Court then ruled that, because CO₂ was "subject to regulation under the CAA," CO₂ was by definition a "regulated NSR pollutant" for which an emission limitation was required pursuant to BACT to obtain a PSD permit. It followed, the Court concluded, that the Georgia SIP (which incorporates the applicable CAA provisions) required the EPD to control the power plant's CO₂ emissions using BACT.

This ruling was not required by the CAA or the decision in Massachusetts v. EPA, and would impose a regulatory burden on Georgia never imposed elsewhere. It would compel the EPD to limit CO₂ emissions in air quality permits, even though no CAA provision or Georgia statute or regulation actually controls or limits CO₂ emissions, and even though (to this Court's knowledge) no federal or state court has ever previously ordered controls or limits on CO₂ emissions pursuant to the CAA. It would preempt ongoing Congressional...