D.C. Court Dismisses Sunflower Appeal of Suit Delaying Holcomb Plant

The D.C. Circuit Court on Tuesday dismissed an appeal by Sunflower Electric Power Corp. of a ruling requiring environmental review of Sunflower’s proposed 875-MW coal-fired power plant in Holcomb, Kansas.

The federal court’s decision lets stand a January 2013 district court decision that found in favor of environmental group the Sierra Club and ruled that the Rural Utilities Service (RUS), which is part of the U.S. Department of Agriculture, must complete an environmental impact study (EIS) before granting any approvals to Sunflower for its proposed Holcomb plant. The decision is expected to further delay construction of the plant.

"We dismiss the appeal for lack of jurisdiction. This court lacks jurisdiction under 28 U.S.C. § 1291 because Sunflower appeals a non-final remand order that is not immediately appealable by a private party," the appellate court ruled. "This court lacks jurisdiction under § 1292(a)(1) because the injunction serves no purpose beyond the remand."

Between 2005 and 2007, the RUS approved a series of agreements between Sunflower and others to develop three new coal-fired power plants at the Holcomb site. In October 2007, however, the State of Kansas denied an air quality permit for the expansion project on the ground that new coal-fired plants would harm human health and the environment by contributing to global warming. Finally, in 2009, Sunflower negotiated a settlement agreement with Kansas to allow an expansion project of a single coal-fired plant.

However, the Sierra Club sued the RUS, alleging it violated the National Environmental Policy Act by failing to prepare an EIS before approving the 2002 agreements related to the restructuring project. Earlier this year, the D.C. District Court granted summary judgment to the Sierra Club, concluding that the service’s decisions to provide necessary approvals and financial assistance for the expansion project constituted “major Federal actions” requiring an EIS.

Sunflower has not yet indicated how the ruling could affect development of the $2.8 billion plant.

Sources: POWERnews, Court of Appeals D.C.