2009-09-30 / Front Page

Georgia Supreme Court denies review of Longleaf COA ruling

“We had estimated that it would be closer to the end of the year before we would hear from the court...” — Mike Vogt, project manager

The Georgia Supreme Court has denied the “Petition for Certiorari” filed by the Sierra Club and Friends of the Chattahoochee in their effort to halt construction of the Longleaf coal-fired power plant in Early County.

The Georgia Court of Appeals, on July 15, overturned six of seven of Fulton County’s Judge Thelma Wyatt Cummings Moore’s rulings voiding the air permit issued by the EPD in May 2007 and upheld by Administrative Law Judge Stephanie Howells in January 2008.

On July 27 GreenLaw attorneys filed the petition on behalf of the FOC and Sierra Club requesting the Supreme Court review the decision of the Court of Appeals.

“We are confident that the Georgia Supreme Court will agree to take the case due to the importance of the air quality issues addressed,” stated GreenLaw executive director Justine Thompson at the time the “Certiorari” was filed with the court.

The decision whether the Supreme Court would hear the case or not was not expected for several months. However, Monday, in a one page notice, the court announced the appeal had been denied, stating... “The Supreme Court today denied the petition for certiorari in this case. All the Justices concur, except Nahmias, J., who is disqualified.” Nahmias was appointed to the court Aug. 21 by Gov. Perdue.

The quick action by the court was welcome news to project manager Mike Vogt. “We had estimated that it would be closer to the end of the year before we would hear from the court,” Vogt stated. “This is certainly good news, but we still have some additional litigation and permitting steps to deal with. At least now we can get moving with those items.”

The 34-page July order of the Georgia Court of Appeals overturning six of seven ruling of the Fulton County judge concluded that Moore’s order would pre-empt federal efforts to regulate the carbon dioxide, require the state to invent new regulations and ultimately lead to “a regulatory burden on Georgia never imposed elsewhere.”

The court affirmed the Superior Court ruling that Judge Howells had applied the wrong standard of review.

In doing so the court ordered Howells’ decision vacated and remanded the case back to the administrative law judge with instructions for the permit to be reviewed under the “correct standard of review.”

The court’s order noted that it was not necessary for the administrative law judge to consider additional evidence or to conduct another hearing. Judge Howells held 21-days of hearings during her initial review which led to her 108- page decision approving the permit.

However, the court ordered her review could not be conducted until the Supreme Court issued its decision.

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