This week, Kansas' state legislature has returned to finish its 2008 session, and the main topic-- surprise, surprise-- is coal. Supporters of Sunflower Electric's proposed plants-- having previuosly failed to override Governor Kathleen Sebelius' veto of a bill that would allow the plants and drastically curtail state officials' authority under state law to consider global warming impacts-- are floating another "compromise proposal" to build smaller plants and couple them with renewable energy provisions. The Kansas City Star also reports that while Governor Sebelius has noted that the proposal essentially differs little from those she has vetoed, at least one key swing vote might be amenable to industry's arguments.
This legislative wheeling and dealing is only more important in wake of the Kansas Supreme Court's decision last week to put Sunflower's lawsuit against the state on the backburner, pending the outcome of the company's appeals to state regulators and to a lower state court. As neither process has moved along significantly, the legislature's actions continue to be Sunflower's last chance to go forward.
And overturning state Environment and Health Secretary Roderick Bremby's ruling, which relied on the Supreme Court's Mass. v. EPA ruling and drew a parallel with the federal Clean Air Act, would certainly be a significant shift in law. Karl Brooks, a legal scholar and historian specializing in administrative law, made that cogent argument clear in a recent Wichita Eagle op-ed reposted by the Climate and Energy Project. Brooks delineates how legislative intervention would, in a strong sense, overturn the existing balance of power:
Kansas politicians of both parties have worked with Kansas attorneys to build a model administrative-law system that balances public opinion, expert enforcement and impartial justice. Sunflower’s special-interest bills erode this well-settled bipartisan balance by giving one branch of government — the Legislature — more authority.
Sunflower’s coal plant bills would interfere with the orderly enforcement of the Air Quality Act by the Kansas Department of Health and Environment and the attorney general.
Sunflower’s bills would interfere with the impartial administration of justice by short-circuiting numerous court cases testing KDHE’s interpretation of the federal Clean Air Act.