Casper — So, you want to build a coal-fired power plant in Wyoming. How clean do you want to make it? Because it turns out, it’s largely up to you to decide — no matter how loudly state regulators and politicians insist that such a plant must be as clean as possible.

On September 29, state environmental quality officials proved it, in a vitally important proceeding on a proposed $1.3 billion coal-burning facility — attended by almost no one but the council itself and its staff, three lobbyists, and a dozen lawyers who perched on stackable plastic chairs, in dim light, arrayed around folding tables.

At issue before the Environmental Quality Council were motions for summary judgment on the air quality permit for Basin Electric’s 350-megawatt Dry Fork power plant, which Basin maintains is among the cleanest designs of its type. Conservation groups note this type of plant is in fact the most traditional and polluting kind of boiler the utility could have chosen.

The Wyoming Outdoor Council, Powder River Basin Resource Council and the Sierra Club last fall appealed the state’s issuance of a permit for Basin to construct the pulverized-coal facility, arguing (among several other points) that the state didn’t insist on the “best available control technology” as required by law when it accepted the utility’s plan to employ a traditional pulverized-coal boiler.

Other technologies for turning coal into electricity are far cleaner, the petitioners argued during the two-day session in Casper. “Supercritical” boilers emit 23 percent less carbon dioxide than traditional pulverized coal boilers (even less still when coal is combined with biomass fuel), and “IGCC” (coal-to-gas) power plants reduce air pollution even further and can even sequester the carbon dioxide emissions for climate-safe storage. And, the groups pointed out, the Wyoming Environmental Quality Act clearly directs the state to evaluate the cleanest “production processes” for turning a given resource, like coal, into a given commodity, like electricity.

But the Wyoming Department of Environmental Quality did not require the utility to use or otherwise evaluate these lower-pollution techniques. Nor did its citizen oversight board, the EQC, correct this oversight when the time came to vote on the motions. The likely outcome is a full-blown contested case hearing and a gigantic boon for the copier-paper industry.

Given the almost universal political refrain in Wyoming that we demand development “on our terms,” how could this be?

The reasons are economic, political and legal, but echo a familiar refrain: when the time comes for Wyoming officials to cast controversial votes, multibillion-dollar business interests usually beat out attorneys for conservation groups.

A Case in Point

Let’s say you run a regional electric co-op serving local ratepayers. Your experts tell you that you’ll need more electricity to sell in the future, as more people plug in more appliances in their new ranchette homes, and more companies in your service area drill for coalbed methane and need to power up more compressors.

So you take a look at the amount of additional power you want to produce, how much you will use, how much you will sell off,
the nature of the coal you intend to burn, and the number of hours each day you expect to be running the facility, among many other factors. Your utility looks at the cooling options and the site constraints and countless engineering calculations, and decides you should plan and design a traditional, pulverized-coal boiler. Coal goes in the burner, boils some water, drives the turbines, electricity goes down the wires, and emissions go up the stack. Nice and simple.

While seeking permission to site this new facility, negotiating equipment design and purchase, and arranging the details of new transmission lines with countless landowners, you also go to the Wyoming Department of Environmental Quality to start the process of getting a permit to put out some air pollution. This is stuff like nitrogen oxides and sulfur compounds and particulates and mercury that don’t do any favors for our lungs, our views of the mountains, or our water quality. In Basin’s case, we’re talking about a little under 90 million tons of it a year, all told.

At this point, under the Wyoming Environmental Quality Act and under the rules Wyoming agrees to enforce for the federal government, the DEQ takes a look at your plans and decides what the “best available control technology” would be (BACT, one of the many impenetrable acronyms that drive this process) to ensure your plant is as clean as it needs to be.

This is important, because if the state messes up this analysis, appellants can lawyer up, question the analysis and get the permit tossed out under state and federal law, either through an appeal like the one prompting the confab in Casper two weeks ago, or in subsequent court challenges if the appeal is denied. If the conservation side wins, no power plant for you, even if you’ve already held a golden-shovel groundbreaking ceremony.

This puts considerable ratepayer funds at risk, costs the state a bundle to defend its decision-making, and further strains the limited resources of clean-air advocacy groups.

So it would seem to be in everybody’s interests that these BACT analyses be thorough, scientifically and politically defensible, and uncontroversial. But they are in fact part of an enormous legal and political dispute that puts into further doubt coal’s continued dominance of U.S. power production.

The problem is that the DEQ, under Wyoming case law, can’t require “best available control technologies” that would force the applicant to “redesign” his plant. Since a supercritical boiler would require, under some arguments, a “redesign,” it is not analyzed. The applicant may consider a wide range of boilers at the start of the process — or at least insist that they did — and then reject them for cost, engineering, or other reasons. But the DEQ will take this analysis at face value and not pursue better air quality than the proposed boiler technology could produce.

The rules and laws clearly contain an open contradiction — a ban on requiring “redesign” versus a required analysis of the cleanest “production processes” broadly. Thus, any new pulverized-coal power plant in the state is going to have its permits challenged on these grounds, leading to years of expensive delays for the utility and higher costs for taxpayers and conservation group members.

This legal contradiction is not new, so the Legislature really has no excuse for failing to clean up its requirements for electricity generators. And the Environmental Quality Council is not going to spike a $1.3 billion facility when the laws they swore to uphold are so openly contradictory, as a few EQC members pointed out during give-and-take with both sides’ attorneys at the Casper hearing.

It’s hard to blame them. The law is a shambles. And after all, the last time the EQC bucked the governor and the energy industry, in a dispute over the ongoing coalbed methane wastewater crisis, several of the EQC’s members were not reappointed. This was widely seen as a rebuke to the council members in question, though to anyone who’s ever sat through an EQC contested case hearing, it might seem more like a reward.

The Council doesn’t always vote on the strictest legal grounds. It is a citizen body and votes with its gut, sincerely interested in a clean environment but well aware of who has the golden shovel in hand for facilities like Dry Fork, and perhaps not eager to have it swung in their direction.

But our process isn’t working out the way every politician in the state, and every ordinary citizen, believes and is promised that is does. It is not delivering the cleanest air quality it can, because utilities, regulators and political leaders have quietly agreed to put the power companies in charge of setting the scope of the state’s BACT analysis, way back on the day they first stopped by the DEQ to start the permitting process.

Other complaints about the Dry Fork permit also hit a wall with the council last month. When Laramie attorney Reed Zars, for the protestors, noted based on the utility’s and DEQ’s own data that the plant would degrade nearby federally protected air-quality areas, neither the utility nor the regulators could refute the data. The DEQ was reduced to arguing that killing the plant’s permit would set back economic development in northeastern Wyoming.

“What I said then, maybe with some frustration in my voice, was that you can’t argue when you’re convicted of murder that you can’t be sent to jail because that would take you out of the workforce,” Zars commented to WyoFile. “You could see that when faced with a legal issue from which there was no exit, they just kept looking for an exit. When that didn’t work … they still didn’t want to decide it.”

Maybe when the process moves forward in November from summary judgment motions to a full-on hearing, with sworn testimony and depositions from expert witnesses, the Council will find a little cover to decide one way or another on the remaining appeal issues.

There are going to be more of these plants proposed in Wyoming, especially in the near-term as the utility industry girds to secure future production before the U.S. finally cracks down on carbon dioxide emissions. Congress had two competing proposals to limit emissions this year, and while it punted, the momentum to do so is building, especially when next year’s much more muscular Democratic majorities take office. And other states are racing ahead of Wyoming to institute their own carbon management schemes, like the cap-and-trade program launched by six states last month on the NYMEX exchange. Outside the scope of such initiatives, Wyoming will remain an attractive option for building coal plants. coal power plant

Last year, when this appeal was filed, Gov. Dave Freudenthal defended Basin’s plans as necessary to get consumers through “a period of transition” leading up to carbon regulation. We are in such a period — but we won’t be any more in 40 years, when this plant will still be operating, an anachronism in the clean-energy economy of the future.