Two rulings by the Utah Supreme Court are making the company behind a coal-fired power plant proposal wonder if the project still makes sense.
The court threw new obstacles Friday in front of the Sevier Power Co. by requiring a substantial updating of its air-pollution permit for a 270-megawatt, $600 million electric generator in Sigurd. The extra work, basically requiring the company to ensure the cleanest possible technology is used, could cost millions and take months, if not years.
Justices unanimously backed arguments made by the Utah Chapter of the Sierra Club and two Sevier County retirees, firefighter Jim Kennon and boat-designer Dick Cumiskey, who have led local opposition to the proposed plant and argued their case directly before the justices last year.
"The [court's] message is we can't continue to just destroy our air quality," said Cumiskey, "and we must strive for improving air quality."
Opponents largely relied on technical issues to challenge the state's 2004 permit for the plant. A Post-It note, for instance, was all the documentation in state records suggesting regulators reviewed the permit before extending it.
But the heart of the opponents' complaints lay in the decision by the Utah Air Quality Division, and backed by the state Air Quality Board, to allow a plant that would increase pollution unnecessarily.
Friday's rulings represent the third and fourth times the justices have considered the Sevier Power Co. plant.
In the Kennon-Cumiskey case Friday, justices zeroed in on the Post-It note. They said regulators appeared to do too little too late to make sure the plant used the best-available pollution control technology, as required by state and federal law. They also said the oversight board ought to have directed regulators to do a proper review.
"A record limited to a Post-It note indicating that someone was contacted regarding a review is woefully inadequate to convince a reasonable person that a review took place, let alone that the review was sufficiently rigorous," Chief Justice Christine Durham wrote.
Fred Nelson, an assistant attorney general, said the court's ruling has the effect of invalidating the state's pollution permit. Neither the air-quality staff nor board members can do anything now.
"The burden's back on the company to decide what to do," Nelson said. "And, until then, there's no permit."
Bruce Taylor, an executive with Sevier Power and its parent company NEVCO LLC, said his company will study the ruling before deciding its next step.
"We'll have to evaluate the situation," he said, adding that it would probably take weeks.
Fred Finlinson, an attorney for the company, noted that Sevier Power already has spent millions on the proposal and that doing the sort of update the court is requiring could mean millions more -- not to mention the possibility of still additional delays if environmentalists appeal again.
"Every once in a while, you wonder 'why am I doing this?' " he said. "That's an analysis that Bruce and the other owners will have to make."
Kennon and Cumiskey are moving forward with a separate lawsuit against Sevier County over how it handled a local permit. Plus, after a Supreme Court ruling last fall, the plant also faces a countywide vote.
Joro Walker, an attorney for the Sierra Club, said the decision is precedent-setting because coal-plant proposals around the country hinge on whether they must use coal-gasification technology or at least consider using it.
"What this decision says is that the Clean Air Act matters," she said. "The requirements of the law are there for a reason, to protect public health, and the court said you can't shortchange the law with a miscellaneous Post-It note."
Cumiskey on Friday said an inversion had settled in and trapped a smoggy haze over the Sevier Valley's homes and farms. Thinking about the added pollution Sevier Power's plant might bring someday, he restated the position he and Kennon have maintained on all the company's plans.
"We would be ecstatic," he said, "if they took their sign down, moved out and said, 'Adios.' "
For a brief film by The Story Group about the power- plant controversy, go to http://www.youtube.com/watch?v=PZUx6stYJ9U.