A three-judge panel at the U.S. Eighth Circuit Court of Appeals on July 23 reversed a lower court decision and allowed Xcel Energy (NYSE: XEL) to intervene in a case where environmental groups are trying to force the U.S. Environmental Protection Agency to require new emissions controls at the coal-fired Sherburne County power plant.
Six environmental groups sued the EPA in the U.S. District Court for the District of Minnesota in an effort to impose emission-control technology on Xcel subsidiary Northern States Power’s Sherburne County (Sherco) power plant in Minnesota. Northern States Power moved to intervene, but the district court denied NSP’s motion.
“We reverse the district court’s order and hold that NSP has standing to intervene and is entitled to intervene as of right,” said the July 23 appeals court decision.
The case, which now goes back to the district court with NSP as an intervenor, turns on Sherco’s possible regional haze impacts on two national parks. Michigan’s Isle Royale National Park and Minnesota’s Voyageurs National Park are mandatory class I Federal areas. The environmental groups are contending that EPA is dragging its feet on doing studies that would prove Sherco’s emissions are impairing visibility at the two parks. They filed this lawsuit in December 2012 to compel EPA to act.
The matter falls under EPA’s reasonably attributable visibility impairment (RAVI) best available retrofit technology (BART) program.
“The Environmental Groups’ complaint seeks to impose costly pollution controls on NSP’s Sherco power plant,” the appeals court noted. “NSP estimates that the technology the Environmental Groups seek to impose on it could cost NSP and its customers more than $280 million. Risk of direct financial harm establishes injury in fact.”
The court added that NSP’s property interests in Sherco and its financial stake in the litigation is sufficient to satisfy the “recognized interest” requirement in court rules.
The appeals court said that NSP’s interests in its Sherco facility diverge from the EPA’s general interests in assuring that the proper regulatory procedures are followed. Both NSP and the EPA argue that the Environmental Groups cannot bypass the proper steps required to impose RAVI BART on Sherco. But NSP’s interest in the litigation is more than mere procedural formality, the appeals court said. NSP owns the target power plant, so it has a financial interest not shared by the general public represented by EPA.
The 2,400-MW Sherco plant is located near Becker, Minn., 45 miles northwest of the Twin Cities, on the Mississippi River. It burns low-sulfur Western coal from Powder River Basin mines in Montana and Wyoming.