(CN) – In a victory for environmentalists, the 5th Circuit reversed a decision that would have allowed the completion of a coal-fired plant in Texas, the construction of which began under the Bush administration’s relaxed pollution controls.
Sandy Creek Energy Associates started building the plant in Riesel, Texas, after the Environmental Protection Agency lifted certain emissions regulations under the George W. Bush administration in 2005.
Although Sandy Creek embarked on the project in January 2008, the D.C. Circuit struck down the Bush policy the very next month. The Sierra Club and Public Citizen sued to halt plant construction in August 2008.
The plant would have emitted more than 10 tons of mercury per year. Mercury can damage the nervous system, and the EPA regulates it as a pollutant.
The New Orleans-based appellate panel found that Sandy Point lacked a determination assuring maximum control over pollution at the plant. Such determinations are required on a case-by-case basis to assess every hazardous air pollutant; the Sandy Creek permit only assessed mercury.
“Thus, the question really is not whether Sandy Creek must comply with [the Clean Air Act] but rather, the question is when and how,” Judge Fortunato Benavides wrote for the court (emphasis in original).
The day construction started is irrelevant, the court said, as the plain language of the Act says no one may construct without such a determination.
Sandy Point’s claim that the Texas Commission on Environmental Quality’s failure to make a decision on its plan constitutes a determination also failed in the 5th Circuit’s view.
The court noted that Sandy Point’s construction prior to March 2008 could not be considered in violation of the Act.