Sierra Club v. Moser
298 Kan. 22
| Kan. | 2013Background
- Sierra Club challenges KDHE's PSD permit for Sunflower's Holcomb 2 coal plant.
- Court recognizes standing under KAQA and KJRA; associational standing satisfied by public participation and demographic injury evidence.
- EPA 1-hour NO2 and SO2 emission limits became effective before PSD permit but were not incorporated in the Holcomb 2 permit.
- Kansas SIP must implement NAAQS; PSD analysis requires applying any NAAQS, including those not yet in SIP, when open-ended by state law.
- Court remands to KDHE to apply new EPA 1-hour limits and, after remand, address retroactive HAPs standards (Mercury and Air Toxics Standards).
- KHJE settlement and 2009 statute § 65-3029 do not render PSD review moot; court respects agency discretion but requires correct legal application.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sierra Club has standing to sue | Sierra Club members have injury-in-fact from Holcomb 2 | KDHE contends no individual injury shown | Yes; Sierra Club has statutory and common-law standing |
| Whether KDHE erred by not applying 1-hour NO2 and SO2 limits | New EPA 1-hour limits apply to PSD permits | SIP open-endedness delays applying new NAAQS | Erroneous; apply new 1-hour limits on remand |
| BACT/IGCC, natural gas, and USPC considerations | KDHE should have considered IGCC, clean fuels, and USPC in top-down BACT | IGCC and fuel changes may require redesign; USPC lacks history | KDHE's top-down BACT application not clearly erroneous; arguments not controlling on remand |
| HAPs/MACT applicability | KDHE failed to address MACT/major-source status for HAPs | HAPs analysis moot due to EPA's retroactive rule | Moot; on remand apply retroactive HAPs limits |
Key Cases Cited
- FACT v. Bremby, 268 Kan. 384, 996 P.2d 821 (2000) (Kan. 2000) (associational standing via public participation in KDHE permitting process)
- Bremby v. Tri-County Concerned Citizens, 286 Kan. 745, 189 P.3d 494 (2008) (Kan. 2008) (public participation supports associational standing for PSD permits)
- Summers v. Earth Island Institute, 555 U.S. 488 (U.S. 2009) (standing requires injury-in-fact; generalized harm insufficient)
- Sierra Club v. Morton, 405 U.S. 727 (U.S. 1972) (individual injury required for standing)