"Fast-Tracking" of Solar Development Not a Bypass of Environmental Review

Posted on November 20, 2009 by Linda Bullen

On June 29, 2009, Department of the Interior (DOI) Secretary Ken Salazar announced several initiatives to aid development of solar energy facilities on federal lands in the Western U.S. Working with Western leaders, the DOI initiative would:

 

  • Designate prime zones for utility-scale solar development
  • Open new Bureau of Land Management (BLM) offices to facilitate permit processing
  • Expedite project proposals. 

Twenty-four tracts of BLM land were designated as Solar Energy Study Areas, upon which projects of 10 megawatts or greater would, under this initiative, be eligible for priority processing. This “priority processing” is commonly referred to as “fast-tracking.” In early November 2009, Secretary Salazar announced the fast-tracking of six renewable energy facilities located on federal land in the State of California. 

 

Fast-tracking is not intended to circumvent any environmental or other process, but rather to facilitate the identified projects identified by the federal agencies involved (most commonly the BLM), giving priority to those that are marked as fast-tracked projects. Nevertheless, several fast-tracked projects, and fast-tracking in general, has come under criticism by some members of the environmental community and others.

 

This criticism is misplaced to the extent that it suggests that fast-tracked projects are not subject to the same rigorous scrutiny as non-fast-tracked projects. Every utility-scale project on federally-owned land is subject to review under the National Environmental Policy Act (“NEPA”). NEPA mandates thorough review of all environmental aspects of any utility-scale energy project on federal land. 

 

The NEPA process does not allow for “short cuts” or circumvention of any part of the process on projects upon which NEPA applies. Accordingly, fast-tracking of renewable projects does not result in a less meticulous or careful environmental review, just an expedited one. Efficiency does not equate to inadequacy, and such criticisms are misplaced.

Kentucky Action on PM 2.5

Posted on November 19, 2009 by Carolyn Brown

As has been reported, EPA granted in part petitions to object to the merged PSD construction/Title V operating permit issued by the Kentucky Division for Air Quality for the addition of a 750 MW pulverized coal-fired boiler at the Trimble County facility owned by Louisville Gas & Electric Company (LG&E). EPA’s action occurred more than three years after the proposed permit and final PSD determination authorizing construction to commence. One ground for the grant of the petition was that the state permitting record did not contain adequate justification of use of the PM10 program as a surrogate for PM2.5 for PSD analysis.

 

Following submittal of additional information by LG&E, Kentucky issued its preliminary determination that many have argued was an attempt to regulate by Title V objection rather than by rulemaking.   Regardless, the Division for Air Quality determined that use of the PM10 Surrogate Policy has been shown to be reasonable for the Trimble County project. In short, DAQ concurred with LG&E that there was a lack of test data regarding the particle size distribution of the particulate matter for the combination of controls on the unit and noted that the control train was state of the art. DAQ also noted that PM2.5 is always a subset of PM10 and that PM10 BACT analyses implicitly include consideration of reductions of PM2.5 emissions. After considering the elements of the control train, DAQ concluded that there were “no known base technologies available” for a PC Boiler that would provide additional reduction of PM2.5

 

LG&E also addressed fugitive emission sources, the emergency generator and cooling tower in its submittal to demonstrate that use of PM10 as a surrogate was reasonable. Although a Class II Cumulative PM2.5 NAAQS analysis was not conducted, LG&E provided information from modeling exercises to further support its position that it was reasonable to rely on the PM10 surrogate policy. DAQ noted that in the absence of a final rule on significant impact levels for PM2.5, a PM2.5 emissions inventory and regulatory dispersion modeling system, it was not possible to conduct a cumulative PM2.5 NAAQS analysis. 

Kentucky Action on PM 2.5

Posted on November 19, 2009 by Carolyn Brown

As has been reported, EPA granted in part petitions to object to the merged PSD construction/Title V operating permit issued by the Kentucky Division for Air Quality for the addition of a 750 MW pulverized coal-fired boiler at the Trimble County facility owned by Louisville Gas & Electric Company (LG&E). EPA’s action occurred more than three years after the proposed permit and final PSD determination authorizing construction to commence. One ground for the grant of the petition was that the state permitting record did not contain adequate justification of use of the PM10 program as a surrogate for PM2.5 for PSD analysis.

 

Following submittal of additional information by LG&E, Kentucky issued its preliminary determination that many have argued was an attempt to regulate by Title V objection rather than by rulemaking.   Regardless, the Division for Air Quality determined that use of the PM10 Surrogate Policy has been shown to be reasonable for the Trimble County project. In short, DAQ concurred with LG&E that there was a lack of test data regarding the particle size distribution of the particulate matter for the combination of controls on the unit and noted that the control train was state of the art. DAQ also noted that PM2.5 is always a subset of PM10 and that PM10 BACT analyses implicitly include consideration of reductions of PM2.5 emissions. After considering the elements of the control train, DAQ concluded that there were “no known base technologies available” for a PC Boiler that would provide additional reduction of PM2.5

 

LG&E also addressed fugitive emission sources, the emergency generator and cooling tower in its submittal to demonstrate that use of PM10 as a surrogate was reasonable. Although a Class II Cumulative PM2.5 NAAQS analysis was not conducted, LG&E provided information from modeling exercises to further support its position that it was reasonable to rely on the PM10 surrogate policy. DAQ noted that in the absence of a final rule on significant impact levels for PM2.5, a PM2.5 emissions inventory and regulatory dispersion modeling system, it was not possible to conduct a cumulative PM2.5 NAAQS analysis. 

EPA Tries to Silence Employees Who (Weakly) Criticize Cap-And-Trade

Posted on November 11, 2009 by Rodney Brown, Jr.

Obama’s EPA finds itself embroiled in a controversy that recalls the Bush Administration: trying to control what the agency’s employees can say about climate change. Today’s controversy is more limited, and more nuanced, than earlier ones. EPA is no longer asking its employees to deny that climate change exists. Instead, EPA has asked two of its attorneys to stop identifying themselves as EPA experts when they publicly criticize a cap-and-trade system for regulating greenhouse gases. Still, I wonder why EPA cares.

EPA previously allowed the attorneys to criticize cap-and-trade as private citizens. The two wrote letters and opinion pieces claiming cap-and-trade doesn’t work, primarily because companies can buy “offsets” that allow them to continue operations without reducing their emissions. They claim a carbon tax would work better than cap-and-trade.

Their writings have not had much effect on the debate in Congress and elsewhere. So the two recently switched from the written word to YouTube, posting a carefully produced video in which they more assertively cite their EPA credentials and experience to justify their critique of cap-and-trade. And as Grist recently noted, EPA took the bait.

EPA should stop worrying about the two attorneys. The two fail to recognize that cap-and-trade works fine when it’s done right. In fact, EPA itself runs one of the most successful cap-and-trade programs in the world. Several years ago, EPA needed to reduce smog in the eastern US. Instead of using typical command-and-control regulations, EPA created the NOx Budget Trading Program. Just last month, EPA released a report on the results achieved by that program. According to EPA, “summertime NOx emissions from power plants and large industrial sources were down by 62 percent compared to year 2000 levels and 75 percent lower than in 1990.”

And the emitters were able to achieve these reductions at a lower cost by trading with other emitters who had cheaper options for compliance. Smithsonian magazine reported a recent estimate that businesses paid only $3 billion to achieve emission reductions that would have cost them $25 billion under traditional command-and-control regulation.

The two attorneys don’t even need to worry about companies finding ways to avoid compliance with the system. Last year, only two emitters failed to comply out of 2,568, even then by only a modest amount. This is not a system full of loopholes.

Finally, the two attorneys ignore the fact that their own agency, under the Obama administration, will get to write the rules for how companies comply with a carbon cap-and-trade system. Both the Waxman-Markey and Boxer-Kerry bills require EPA to write rules regulating how companies can use “offsets” to comply with the system. Surely the agency can write rules that make this cap-and-trade system work as well as the NOx system the agency already runs.

And one more thing: As Grist reports, many experts think that the alternative — a carbon tax — may not achieve the emission reductions we need. We can only guess what carbon price might lead to the right amount of emission reductions. We’ll get the tax revenues we predict, but not necessarily the carbon reductions.

So the two attorneys should lighten up on their criticisms. But even if they don’t, EPA should stop worrying about them so much.

Environmental Review for Genetically Engineered Crops

Posted on November 11, 2009 by Andrew Brown

For some genetically engineered (GE) crops, the fields may be quiet, but the courtrooms have been busy. On October 22, Monsanto, Forage Genetics International, and two alfalfa farmers filed a U.S. Supreme Court cert petition to reverse a permanent nationwide injunction that prevents GE alfalfa from being sold or planted. On September 21, a federal court in California held an Environmental Impact Statement (EIS) is required for the deregulation of GE sugar beets. The permanent injunction on alfalfa and the recent decision for sugar beets could result in many lost years where farmers are unable to grow these weed-resistant crops. (For disclosure: my firm, Dorsey & Whitney LLP represented Forage Genetics in this case, and I was lead counsel.)

 

Alfalfa

            The U.S. Supreme Court petitioners are challenging a nationwide injunction against Roundup Ready alfalfa that prevents its use and sale until the government performs an EIS.   On February 13, 2007, the District Court held that the Animal and Plant Health Inspection Service’s (APHIS) environmental assessment was inadequate because it failed to explain why the possibility of cross-pollination of conventional and organic alfalfa with Roundup Ready alfalfa was not itself a “significant harmful impact” on the environment. On this basis, the court ordered APHIS to prepare a full EIS. The decision to require an EIS was not challenged on appeal, but APHIS, Monsanto (who owns the intellectual property rights to Roundup Ready alfalfa), Forage Genetics (the exclusive developer of Roundup Ready alfalfa) and three alfalfa growers appealed the court’s order which stopped the commercial use of Roundup Ready alfalfa until the EIS was prepared. The appellants argued the injunction was too broad, the district had effectively exempted the NEPA plaintiffs from showing irreparable harm to obtain the injunctive relief (only requiring the “possibility” of harm), and that the injunctive relief had been granted without an evidentiary hearing although there were genuinely disputed issues of fact and an evidentiary hearing had been requested.    

            The petitioners argue the Ninth Circuit misapplied the recent Supreme Court decision in Winter v. NRDC, 129 S.Ct. 365 (2008),which held a district court may not enter an injunction for a National Environmental Policy Act (NEPA) violation broader than necessary to prevent a likelihood of “irreparable harm” pending the government’s preparation of an EIS. Following this reasoning, petitioners argue the Ninth Circuit’s concern over the mere possibility of cross-pollination cannot be reconciled with Winter’s holding that irreparable harm must be likely. Petitioners also argue the Ninth Circuit erred in upholding an injunction sought to remedy a NEPA violation without first conducting an evidentiary hearing on genuinely disputed facts.

            The issue of cross-pollination has become an increasingly important topic for the world of GE crops. According to the cert petition, cross-pollination can occur only if two fields produce flowers simultaneously and pollen is transferred between them. However, debates regarding isolation zones and whether farmers should fence-in or fence-out have not been resolved and are intensifying. The Roundup Ready alfalfa has been genetically engineered to be resistant to Roundup, a broad-spectrum agricultural herbicide that controls nearly every weed species in alfalfa crops.  

Sugar Beets

            The Northern District of California, the same district court that decided the alfalfa case, ruled on September 21 that the government failed to require an EIS on GE Roundup Ready sugar beets. Center for Food Safety v. Vilsack, No. C 08-00484 (N.D. Cal. 2009). The plaintiffs sued after APHIS decided to unconditionally deregulate the sugar beets and allow them into U.S. agriculture. Over 95% of the U.S. sugar beet crop is now engineered to resist herbicide, so the effect of the District Court’s ruling could be extensive.

            Once again, the District Court expressed its concern about the possibility of cross-pollination. Although APHIS, after conducting an environmental assessment, determined the likelihood of cross-pollination to organic fields is “unlikely,” the District Court found the “potential elimination of farmer’s choice to grow non-genetically engineered crops, or a consumer’s choice to eat non-genetically engineered food” does have a “significant effect” on the environment because of the long distances pollen can travel by wind. The Court held APHIS did not demonstrate a “hard look” at this issue as required by NEPA.

            The District Court planned a case management conference on October 30 to determine the remedies phase of the case. In addition to the original parties, other growers, sugar processors and seed companies like Monsanto were expected to be allowed to take part in the remedy phase. The results of the case management conference have not yet been published.

The Future of GE Crops

            According to an October NY Times article, Agriculture Secretary Tom Vilsack is preparing for a drastic rethinking of the country’s polices for GE crops. The Department of Agriculture is planning to update its regulations this spring to create a better way for GE and conventional crops to coexist. Vilsack stated “[y]ou know, I think [regulations for GE are] an evolving process, which is why we’re doing this and probably should have done it more than 20 years ago.”

            The Department of Agriculture will have a lot to tackle in the upcoming months when creating new policies for GE crops, which are widely used throughout the country. The NY Times reported 95% of sugar beets, 90% of soy and cotton crops, and 85% of the corn crop utilize GE seeds. Whether the agency creates rules that compliment or correct the recent court rulings will be an important question, especially for farmers with sugar beets or alfalfa in their fields.

The October 8, 2009, New York Times article is available here.

(I would like to express my appreciation to Valerie Paula, an associate at Dorsey & Whitney LLP, for her assistance in preparing this note.)

Another Corner Heard From: Portland (Oregon) Releases a New Climate Action Plan

Posted on November 4, 2009 by Seth Jaffe

Last week, the City of Portland, Oregon (together with Multnomah County) released an updated Climate Action Plan. The Plan presents a number of aggressive goals and targets, with ultimate goals of GHG reductions of 40% by 2030 and 80% by 2050.

The details of the Plan are obviously only relevant to those in the Portland area, but for those anticipating what regulation might look like in California, Massachusetts, and other states that have enacted or will soon enacted some version of a Global Warming Solutions Act, the Plan provides a helpful catalogue of the types of changes that might be sought. Therefore, a quick summary of some of the 2030 goals seems warranted

Reduce energy use from existing buildings by 20%-25%

All new buildings – and homes -- should have zero net GHG emissions. 

Reduce VMT by 30% from 2008 levels

Recover 90% of all waste generated

Reduce consumption of carbon-intensive foods

Expand “urban forest canopy” to cover one-third of Portland

Reduce emissions from City and County operations by 50% from 1990 levels

What’s my take? I have two immediate reactions. First, if any further evidence were needed that attaining significant GHG emission reductions is going to involve major social and economic changes, this is certainly it. 

Second, and perhaps more importantly, this Plan, and others like it, have to constitute a heavy thumb on the side of the scale arguing for comprehensive federal legislation. In the past, I’ve argued that federal legislation would be preferable to a patchwork made up of EPA regulation under existing Clean Air Act authority, public nuisance litigation, and state and regional initiatives. To that list, we can now add comprehensive local regulation. I don’t mean to be too sanguine about the ability of federal legislation to harmonize this entire process; the existing bills would not preempt most state, regional, and local regulations (other than cap-and-trade programs). Nonetheless, delays in federal enactment can only contribute to the proliferation of state, regional, and local programs, some of which may be beneficial, but many of which will be inefficient, contradictory, or both.

Another Corner Heard From: Portland (Oregon) Releases a New Climate Action Plan

Posted on November 4, 2009 by Seth Jaffe

Last week, the City of Portland, Oregon (together with Multnomah County) released an updated Climate Action Plan. The Plan presents a number of aggressive goals and targets, with ultimate goals of GHG reductions of 40% by 2030 and 80% by 2050.

The details of the Plan are obviously only relevant to those in the Portland area, but for those anticipating what regulation might look like in California, Massachusetts, and other states that have enacted or will soon enacted some version of a Global Warming Solutions Act, the Plan provides a helpful catalogue of the types of changes that might be sought. Therefore, a quick summary of some of the 2030 goals seems warranted

Reduce energy use from existing buildings by 20%-25%

All new buildings – and homes -- should have zero net GHG emissions. 

Reduce VMT by 30% from 2008 levels

Recover 90% of all waste generated

Reduce consumption of carbon-intensive foods

Expand “urban forest canopy” to cover one-third of Portland

Reduce emissions from City and County operations by 50% from 1990 levels

What’s my take? I have two immediate reactions. First, if any further evidence were needed that attaining significant GHG emission reductions is going to involve major social and economic changes, this is certainly it. 

Second, and perhaps more importantly, this Plan, and others like it, have to constitute a heavy thumb on the side of the scale arguing for comprehensive federal legislation. In the past, I’ve argued that federal legislation would be preferable to a patchwork made up of EPA regulation under existing Clean Air Act authority, public nuisance litigation, and state and regional initiatives. To that list, we can now add comprehensive local regulation. I don’t mean to be too sanguine about the ability of federal legislation to harmonize this entire process; the existing bills would not preempt most state, regional, and local regulations (other than cap-and-trade programs). Nonetheless, delays in federal enactment can only contribute to the proliferation of state, regional, and local programs, some of which may be beneficial, but many of which will be inefficient, contradictory, or both.

Another Corner Heard From: Portland (Oregon) Releases a New Climate Action Plan

Posted on November 4, 2009 by Seth Jaffe

Last week, the City of Portland, Oregon (together with Multnomah County) released an updated Climate Action Plan. The Plan presents a number of aggressive goals and targets, with ultimate goals of GHG reductions of 40% by 2030 and 80% by 2050.

The details of the Plan are obviously only relevant to those in the Portland area, but for those anticipating what regulation might look like in California, Massachusetts, and other states that have enacted or will soon enacted some version of a Global Warming Solutions Act, the Plan provides a helpful catalogue of the types of changes that might be sought. Therefore, a quick summary of some of the 2030 goals seems warranted

Reduce energy use from existing buildings by 20%-25%

All new buildings – and homes -- should have zero net GHG emissions. 

Reduce VMT by 30% from 2008 levels

Recover 90% of all waste generated

Reduce consumption of carbon-intensive foods

Expand “urban forest canopy” to cover one-third of Portland

Reduce emissions from City and County operations by 50% from 1990 levels

What’s my take? I have two immediate reactions. First, if any further evidence were needed that attaining significant GHG emission reductions is going to involve major social and economic changes, this is certainly it. 

Second, and perhaps more importantly, this Plan, and others like it, have to constitute a heavy thumb on the side of the scale arguing for comprehensive federal legislation. In the past, I’ve argued that federal legislation would be preferable to a patchwork made up of EPA regulation under existing Clean Air Act authority, public nuisance litigation, and state and regional initiatives. To that list, we can now add comprehensive local regulation. I don’t mean to be too sanguine about the ability of federal legislation to harmonize this entire process; the existing bills would not preempt most state, regional, and local regulations (other than cap-and-trade programs). Nonetheless, delays in federal enactment can only contribute to the proliferation of state, regional, and local programs, some of which may be beneficial, but many of which will be inefficient, contradictory, or both.

PCB-Containing Caulk: How Old Is Your Building?

Posted on November 3, 2009 by Linda Bochert

The U.S. Environmental Protection Agency (EPA) has found evidence that buildings constructed or renovated between 1950 and 1978 may have PCBs at high levels in caulk around windows and door frames, between masonry columns and in other building materials. Congress banned the manufacture and most uses of PCBs in 1976.

 

On September 25, 2009, EPA issued general guidance to communities as well as specific guidance to help school administrators and teachers reduce the risk of PCB exposure to children, and to assist contractors renovating buildings with suspect caulk.

 

Although EPA has generated specific guidance for school administrators and teachers, all buildings constructed during this time period may have PCB-containing caulk. EPA’s guidance helps to identify the extent of potential risks and to determine if mitigation steps are needed. EPA will work directly with building owners and administrators facing serious problems to help develop a practical approach to reduce exposures and prioritize caulk removal. 

 

EPA has also identified several unresolved scientific issues that must be better understood to determine the magnitude of the issue and to develop the best long-term solutions. As a result, EPA will conduct new research to better understand the risks posed by PCB-containing caulk. EPA plans to use these research findings to make additional recommendations to further minimize exposure and generate an action plan for caulk removal.

 

While the materials EPA released identify the issue of PCB-containing caulk as a concern, the agency advises there is insufficient information concerning the scope or severity of the issue to provide property owners and school administrators with very concrete advice about next steps.  Unfortunately, this can only leave both property owners and school administrators wondering, "just how big a concern is this and how should I respond?" Like lead paint, asbestos, mold, indoor air quality and other types of building hazards, PCBs can be added to the list of risks that real estate professionals and lawyers will have to address in building transactions.

 

For more information, contact EPA’s toll free hotline at 1-888-835-5372 or the EPA website located at: http://www.epa.gov/pcbsincaulk.

PROPOSED LONGLEAF FACILITY KEEPS MOVING FORWARD

Posted on November 2, 2009 by Patricia Barmeyer

Over persistent objections from the Sierra Club and a local environmental group, LS Power’s proposed new coal-fired power plant in southwest Georgia continues to make its way through the permitting and appeals process. Correcting the stunning reversal of the permit by the Superior Court on multiple grounds, the Georgia Court of Appeals overturned the Superior Court in most respects, and the Georgia Supreme Court has declined to hear the case.

 

            In May 2007 LS Power obtained a Prevention of Significant Deterioration (“PSD”) permit from Georgia EPD to construct and operate a 1200 MW pulverized coal-fired power plant, the Longleaf Energy Station. Shortly after issuance of the permit, the Sierra Club and a local environmental group filed a seventeen-count petition for administrative review. The petition contained many of the same challenges that Sierra Club has raised in other coal-fired power plant permit appeals all around the country, including the claim that the permit should have contained an emissions limitation for CO2. A state administrative law judge dismissed a number of these counts as a matter of law; the remaining counts were resolved against petitioners after a 21-day evidentiary hearing. The petitioners appealed the ALJ’s decision on six grounds, and in June of 2008, a Fulton County Superior Court judge ruled in favor of petitioners on all six grounds. The Superior Court’s decision was widely-touted by the Sierra Club, and it received national attention, as it was the first court in the country to hold that the Clean Air Act required PSD permits to include an emissions limitation for CO2

 

The business community in Georgia rallied to support Longleaf’s efforts to persuade the appellate court in Georgia to reverse the Superior Court holding, and over 100 business entities signed on to an amicus brief urging reversal. On July 7, 2009, the Georgia Court of Appeals reversed the Superior Court on five of the six grounds before the Court. Longleaf Energy Associates, LLC, et al. v. Friends of the Chattahoochee, Inc., et al., Nos. A09A0387 & A09A0388, 2009 WL 1929192 (Ga. Ct. App. July 7, 2009). 

 

            Most notably, the Court of Appeals squarely rejected the claim that the Clean Air Act requires an emissions limitation for CO2 in a PSD permit. The Georgia Court of Appeals held that while CO2 may be a pollutant under the Clean Air Act, it is not currently a pollutant “subject to regulation” under the Act because there are no regulations that limit or otherwise control CO2 emissions. The Court’s decision is consistent with former EPA Administrator Stephen Johnson’s December 18, 2008 memorandum which outlined EPA’s official position on this issue in response to the Environmental Appeals Board’s decision in In re: Deseret Power Electric Coop., PSD Appeal No. 07-03 (E.A.B. Nov. 13, 2008). See http://www.epa.gov/nsr/guidance.html. EPA’s new Administrator, Lisa Jackson, is currently reconsidering the Johnson memorandum but has declined to stay the effectiveness of that memorandum during her review. See id. While recent activity both at EPA and in Congress indicate that the treatment of CO2 in the context of PSD permitting may soon be changed, the Georgia Court of Appeals’ decision confirms that, at least for now, the law does not require an emissions limitation for CO2 in PSD permits. 

 

            The Court of Appeals likewise rejected the other substantive claims raised by the petitioners. The Court held that EPD was not required to consider integrated gasification combined cycle (“IGCC”) — a type of power plant in which coal is converted into a synthetic gas and that gas is then burned in a combustion turbine to produce electricity — as part of its best available control technology (“BACT”) analysis for the Longleaf facility. The Court reaffirmed a principle that many administrative tribunals and courts have previously recognized: the required scope of a BACT analysis does not extend to those pollution control technologies that would redefine the proposed source. In the case of IGCC, the Court relied on the undisputed physical and chemical differences between an IGCC power plant and the pulverized coal-fired power plant that Longleaf proposed to build to conclude that IGCC could not be applied to the Longleaf facility without redefining the proposed source. 

 

            The Court of Appeals also rejected petitioners’ challenge to the air dispersion modeling for fine particulate matter, or PM2.5. EPD and Longleaf utilized PM10 modeling as a surrogate for PM2.5 to demonstrate compliance with the PM2.5 National Ambient Air Quality Standard. The Court reasoned that at the time Longleaf’s final permit was issued, this surrogate approach was the only approved method of conducting PM2.5 modeling for purposes of PSD permitting. 

 

            On September 28, 2009, a unanimous Georgia Supreme Court denied Sierra Club’s petition for a writ of certiorari, clearing the way for the parties to proceed with a remand limited to the ALJ’s standard of review. Sierra Club has since moved for reconsideration of that denial, and a decision on that motion is expected soon. For now, however, coal project developers can look to the recent Longleaf decision as an example of a court that has properly refused to preempt the deliberations in EPA and Congress concerning the future of coal-fired power plant permitting.