CYNTHIANA — After years of legal arguments, the cases for and against a huge proposed coal-burning power plant near Mammoth Cave was boiled down into an hour Tuesday.
The issue before the Kentucky Court of Appeals, which met in Cynthiana, was this: Did Franklin Circuit Judge Thomas Wingate make the right decision last year when he threw out a state air permit for the plant, saying it didn't do enough to protect the environment?
No matter what the three-judge panel decides, one of the state's longest-running environmental fights is not likely to end soon.
“This has become a career,” joked Diana Andrews, the assistant director of the state Division for Air Quality.
Peabody Energy's $2.5 billion, 1,500 kilowatt Thoroughbred plant in Muhlenberg County was proposed in 2001, but had been hung up by legal challenges.
The National Park Service initially said the plant would increase pollution at Mammoth Cave National Park, harming plants and animals there. The agency reversed itself after Bush administration officials got involved.
The state granted an air permit in 2002.
The Sierra Club objected. In 2005, after months of testimony, a hearing officer said the permit needed more review of pollution-control technology and a better analysis of environmental impacts.
In 2006, then-Natural Resources Secretary Lajuana Wilcher made a few changes to the permit and reapproved it.
But Wingate agreed with the Sierra Club that the permit still allowed the plant to use outdated technology.
“Rather than follow the law, the Franklin Circuit Court substituted its own judgment,” said Robin Thomerson, who represented the state, told the appeals court Tuesday.
Sanjay Narayan, an attorney for the Sierra Club, argued that less-polluting technologies were commercially available, but ignored by Peabody and the state regulators.
Appeals Court Judge Denise Clayton of Louisville said the three judges hearing the case probably had not read all 34 boxes of evidence, but they peppered the attorneys with questions. A decision should come in about a month, Clayton said.
Peabody spokesman Vic Svec said after the hearing that his company still wants to build the plant.
“We think the need for new generation in the U.S. is becoming more clear every day The cupboard is almost bare,” he said.
If Peabody prevails in court, it will be able to use the permit granted six years ago, said John Lyons, the director of the Division for Air Quality.
The pollution controls called for in the permit still are the best available technology for the kind of pulverized coal boiler Peabody wants to build, he said. Andrews, his assistant, characterized a newer, cleaner technology called integrated gasification combined cycle, as “hugely expensive.”
But Hank Graddy, a Midway lawyer who represents the Sierra Club, said the state is required to consider such new technologies before granting a permit.
Even if Peabody wins in court, its permit will still face other legal challenges, he said.
“I don't believe they will be able to build with the permit they currently have,” he said.