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E-M:/ Judge Swallow comments on the Deseret CO2 BACT decision

Note....this concerns yesterday's decision by the EPA Environmental
Appeals Board in response to a Sierra Club petition that mandates a
remand back to a state permit issuing agency to require a carbon dioxide
BACT determination in a proceeding to evaluation an air quality
permit for a major stationary source under the Clean Air Act

Judge Swallow is a former Alpena County Circuit Court Judge


Date:  November 14, 2008
Contact:  Joseph P. Swallow at (989) 354-4104 or judgeswallow@charterinternet.com
Comments by Joseph P. Swallow, Attorney for Citizens for Environmental Inquiry
Re:      Deseret Power Electric Cooperative
PSD Permit No. PSD-OU-0002-04.00
PSD Appeal No. 07-03
            On November 13th the U.S. Appeals Board of the Environmental Protection Agency held that before the EPA may issue a permit to construct a coal-fired electrical plant consideration must be given to carbon dioxide (CO2) emissions; that such consideration is required by the Federal Clean Air Act (as enacted by Congress)
            While this appeal involved a single coal-fired power plant located in Utah, the appeals Board noted the implication of its decision are national in scope and suggested that interested persons would be better served by considering this opinion in a national sense rather than on an individual permit basis.  As a lawyer this tells me that any permit issued in any state without consideration of CO2, if appealed, will need the same result as the Utah plant.
            The opinion goes a long way in answering the issue raised in the CEI v DEQ lawsuit that is now on Appeal, i.e. Circuit Court No. 08-114 AW, Court of Appeals No. 286773.  If the legislative branch of government (be it the congress or state legislature) has told the executive branch of government (be it the president or governor) to regulate a pollutant that directive cannot be ignored.  Further, if the directive is ignored, the judicial branch of government (be it federal or state) has the authority to require the executive branch to implement the legislative directive.
            The opinion of the EPA Appeal Board is appealable to the federal judiciary.  But, based on the opinion of the U.S. Supreme Court in Massachusetts v EPA, 549 U.S. 497 (2007), it is very likely that the Appeal Board?s opinion will be upheld.
            In a positive sense this opinion marks the beginning of a new era in the production of energy for our nation.  Hopefully we will direct our industrial know how and technical innovation towards meeting this challenge.

Alex J. Sagady & Associates        http://www.sagady.com

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