Coal Litigation Strategies
Around the world, governments continue to plan new coal-fired power plants and seek to extend the life of existing plants. These facilities rain toxic pollutants and particulate matter on nearby communities, poisoning their air and water. These facilities generally require large amounts of water to operate, jeopardizing access to clean water supplies.
Globally, coal-fired power plants are major contributors to climate change, producing approximately 70% of carbon dioxide emissions attributable to power generation. Coal mining releases large amounts of methane, a highly potent greenhouse gas. To avoid catastrophic damage to our climate, and to protect local communities and the environment, we must stop mining, transporting and burning coal. Generating electricity from coal is completely unsustainable.
Cost-effective alternatives to coal are available and some countries have started to move past coal. However, in other countries, coal companies, utilities, and governments are determined to continue producing and using coal.
All over the world, grassroots advocates and communities are stepping forward to challenge these short-sighted plans. These advocates are challenging permits for coal mines, power plants, and infrastructure, enforcing clean air and water laws that restrict such coal projects, and empowering communities to speak out against coal. Working together, we can mount strong opposition to coal and move toward a more sustainable energy future.
Lawyers working with local communities are employing many creative strategies and arguments to usher in alternatives to coal-based power.
ELAW provides this brief overview of successful legal strategies used to defeat new and refurbished coal infrastructure, as well as a database of relevant court decisions, including decisions from public utility commissions. The strategies are organized along the timeline of a typical coal-fired power plant, beginning with the earliest stage of energy planning and continuing through site-specific permitting, development, and operation of a coal-fired power plant, with additional strategies that may be viable at several stages at the end. ELAW presents this information to help lawyers protect the rights of communities to live in a healthy environment and to protect the climate. We welcome comments and additional court or agency decisions. As we learn about additional successful strategies, we will include them on the site.
Long before a particular coal-fired power plant is proposed, there will be decisions that influence the types of energy sources that a country or other jurisdiction will use for electricity generation. This is known as energy planning. Participation in energy planning processes can be an effective way to encourage governments to choose alternatives to coal, such as renewables, and advocate for energy efficiency measures.
Many jurisdictions go through both long-term energy planning process (such as adopting a 20-year plan) and a short-term energy plan (2-5 years). The purpose of energy planning is to analyze a jurisdiction’s likely future energy needs and develop a plan to meet those needs. While long-term plans may not include a list of proposed facilities, they will likely include a portfolio of intended energy sources. Such plans may be referred to as “National Energy Plans,” “Integrated Resource Plans (IRPs)” or “Portfolio Management (PM).”
Energy planning processes are regulated differently across jurisdictions. Some may be governed by particular laws, such as an electricity planning law and a renewable electricity law. Other processes may simply be conducted on an ad hoc basis or using non-binding guidance. Regardless, it is important to participate actively in these planning processes if the opportunity arises.
Many jurisdictions implement “least-cost planning” or some variation of this such as “least-cost, least-risk.” Least-cost planning is a method of deciding the most cost-effective way to meet future energy needs, looking at a range of alternatives and doing a cost-benefit analysis. In these jurisdictions, it will be important to ensure the external costs of coal are considered.
A careful review of applicable energy planning laws may turn up enforceable legal requirements, such as directing energy planning agencies to prioritize certain types of energy sources or requiring public consultations. These types of .
Even if the law does not specifically require it, advocates should argue that energy planning must include a study of the environmental impact of the proposed energy choices. Although decision makers are likely to claim that such assessments are better done when specific projects have been proposed, it is good to raise this point early in the process. The global impacts of burning coal and other fossil fuels are best studied at the planning stage. The risk of waiting to raise this argument until a particular coal-fired facility is proposed is that decisionmakers will say it is too late to go back and revisit the decision to use coal in the energy portfolio.
When a need to build a new electricity generation facility has been identified, either by a utility that needs to add capacity to meet demand, or by an independent power producer that want to sell to a market, the project proponent begins the siting process.
The steps toward approval of an individual power plant will depend on the laws governing the process of the jurisdiction but also on the character of the entity such as whether the generator is state-owned, independent, or part of an investor-owned utility.
The siting process is generally a series of steps used to evaluate the specific proposed power plant – reviewing the proposed location, the design of the project, and the impacts of the project.
In some jurisdictions, the project proponent must obtain a “Certificate of Need,” “Certificate of Public Convenience and Necessity,” or a similar certification in conjunction with, or as part of, the siting process. In order to obtain this certification, the project proponent is required to demonstrate the need for the additional energy generation. . The process may require of building its own generation facility to purchasing the power from others. In this case, it may need to put out a request for proposals (RFP).
Construction and operation of a coal-fired power plant may violate constitutional rights guaranteed in many jurisdictions including a right to life, , or right to dignity. These rights may be violated in several ways including through land acquisition, air pollution, or other impacts to human health and the environment.
Bringing a constitutional claim may ensure impacted communities have access to expedited court proceedings or bring other benefits over other legal challenges.
The Supreme Court of Chile found that operation of the Bocamina coal-fired Power Plants I & II violated the right to live in an environment free from contamination. The intake and discharge of seawater for the cooling system was causing massive death of marine species which are critical to local fishermen.
Rol No. 9852-2013, Supreme Court of Chile, decided on 9 January 2014 (as revised 6 November 2014)
Environmental Impact Assessment
Environmental impact assessment (EIA) is an interdisciplinary and multistep process to ensure that environmental considerations are included in decisions regarding projects that may impact the environment. Simply defined, the EIA process helps identify the possible environmental effects of a proposed activity and how those impacts can be mitigated. The purpose of the EIA process is to inform decision-makers and the public of the environmental consequences of implementing a proposed project.
The EIA document itself is a technical tool that identifies, predicts, and analyzes impacts on the physical environment, and may also evaluate social, cultural, and health impacts. If the EIA process is successful, it identifies alternatives and mitigation measures to reduce the environmental impact of a proposed project. The EIA process also serves an important procedural role in the overall decisionmaking process by promoting transparency and public involvement. It is important to note that the EIA process does not guarantee that a project will be modified or rejected if the process reveals that there will be serious environmental impacts. In some countries, a decisionmaker may, in fact, choose the most environmentally harmful alternative, as long as the consequences are disclosed in the EIA. In other words, the EIA process ensures an informed decision, but not necessarily an environmentally beneficial decision.
The EIA process, while not uniform from country to country, generally consists of a set of procedural steps culminating in a written impact assessment report. In most instances, there will be at least one opportunity for members of the public to review the EIA report and express their viewpoints to decisionmakers.
When reviewing an EIA report for a proposed coal-fired power plant, there are key points that should be carefully checked. The list below is not intended to be comprehensive, but instead focuses on a few issues that commonly arise.
The identification of the project itself is a common deficiency. Although this step may seem relatively simple, defining a “project” for the purposes of an EIA can become complex and even controversial. The goal of this step is to define the project with enough specificity to accurately determine the zone of possible impacts and to include activities that are closely connected with the proposal so that the entire scope of environmental impacts is evaluated. If the “project” is defined as building a 250 MW coal-fired power plant, the alternatives analysis may be unreasonably limited. Describing the same project as adding 250 MW generating capacity, could change the alternatives analysis framework and force decisionmakers to consider energy sources other than coal.
Alternatives analysis. Closely related to the identification of the project itself, or the purpose and need, is the analysis of alternatives in the EIA. The project proponent should be encouraged to include a range of alternatives to coal including energy efficiency and other demand-side management measures (reducing consumer energy needs), as well as other energy sources.
Impact analysis. Proper environmental impact analysis requires evaluation of direct, indirect, and . The cumulative impacts analysis is often the weakest part of an EIA, and therefore susceptible to legal challenge.
Segmentation. Project proponents may attempt to “segment” a project into several smaller pieces to avoid having to analyze or disclose the impacts of the project as a whole. Segmentation may also be used to take advantage of provisions in an EIA law that allow smaller projects to move forward with less detailed (or no) environmental review. For example, proponents of a 600 MW coal-fired power plant may attempt to present the project as four independent 150 MW facilities. This approach prompts investment in a smaller piece of the project, which may make it more likely that decisionmakers will approve the next phase or piece of the project. .
Connected actions. In a related concept, courts have found that . For example, project proponents may try to do separate analyses for a coal-fired power plant, transmission lines, and port for the import of coal.
Cost-Benefit Analysis. Any cost-benefit analysis for a coal-fired power plant should include analysis of the external costs of coal.
Greenpeace reports that coal produced roughly 46% of the world’s carbon dioxide emissions in 2013, while producing less than 30% of the world’s energy supply. In addition, extracting the coal to burn releases large amounts of methane. Either as part of the planning process, the EIA process, or under separate laws, advocates should ensure that project proponents are accurately describing a proposed project’s contribution to climate change, as well as the proposed project’s resiliency to effects of climate change. In addition, or taxation of carbon emissions.
Coal infrastructure emits toxic pollutants, including sulfur dioxide, nitrogen oxide, mercury, and particulate matter, creating significant air quality concerns for human health and polluting the surrounding environment.
In many jurisdictions this air pollution is allowed as long as the plant operator obtains and complies with an air pollution permit. It is important to closely monitor the permitting process to ensure that agencies are carefully following regulatory requirements and are making proper decisions. For example, rather than simply relying on information provided by the project proponent.
Air pollution laws may also be invoked if an existing facility is harming local air quality and provide an opportunity to file complaints about emissions violations.
External Costs of Coal
Advocates challenging coal infrastructure should ensure that cost-benefit evaluations of proposed facilities include all costs including those that are sometimes referred to as the “external costs” of coal or the “social costs” of coal: the costs to society that are not borne by the entities generating and delivering electricity. These costs do not appear in financial documents or balance sheets, but they are just as real and relevant to decision-making. Advocates need to ensure that harms to human health and the environment are not being ignored or undervalued. Economic analysis can be a powerful tool to help recognize (and mitigate or avoid accordingly) the potential harms that may occur because of new or expanded activities that take a toll on communities and the environment. , such as a coal-fired power plant, may not be too difficult if such estimates have been made elsewhere, for similar projects in similar surroundings. Raising the issue that these external costs cannot be ignored, and then pointing to examples of estimates in other projects, should make it impossible for proponents and decision makers to simply ignore the question: how large are the external costs? Does their inclusion change the project’s overall social net benefit? Estimating external costs, and incorporating them into an overall cost-benefit analysis, may require an economist with knowledge of discounting, nonmarket valuation techniques, and calculations of net present value. However, even if it is not possible to calculate detailed external costs with absolute certainty, advocates may change the debate just by raising this issue and asking for a valuation of these costs.
Energy Efficiency and Alternative Energy
At every stage in the development of a proposed coal-fired power plant, advocates must be creative about using every possible opportunity to ensure that decisionmakers are requiring electricity providers to meet energy demand through energy efficiency measures or from alternative energy sources. For example, decisionmakers may on investing in these resources.
Financing of coal infrastructure may open doors to other legal challenges. For example, many international (and some bilateral) financial institutions, such as the World Bank, have published safeguard policies that govern lending. In addition to important policies governing consultation, access to information, environmental and social impact assessment, indigenous peoples, and involuntary resettlement, some of these institutions have adopted policies to specifically limit financing of coal projects.
Communities impacted by a project that is financed by one of these institutions can raise concerns about potential violations of safeguard policies if the bank has an independent accountability mechanism. These mechanisms can be found at the World Bank, International Finance Corporation, African Development Bank, Asian Development Bank, Inter-American Development Bank, and others.
ELAW is pleased to present this overview of laws designed to tackle the growing problem of disposable plastic.
Under Minnesota state law, the Public Utilities Commission (PUC) is required to “quantify and establish a range of environmental costs associated with each method of electricity generation,” and utilities are required to use those costs “when evaluating and selecting resource options in all proceedings before the [PUC], including resource planning and certificate of need proceedings.”
In the Matter of the Further Investigation into Environmental and Socioeconomic Costs Under Minnesota Statutes Section 216B.2422, Subdivision 3, OAH 80-2500-31888, MPUC E-999/CI-14-643, Minn. Office of Admin. Hearings (April 15, 2016) [Note: This decision is only a recommendation that the MPUC is not obligated to follow.]
The Oregon Public Utilities Commission (PUC) denied a request by Pacificorp to build two fired electricity facilities to meet a projected increase in demand of 1,109 MW. The PUC determined in part that Pacificorp overestimated its resource needs and that the company failed to establish that constructing new electricity generating plants would best meet increased demand. The PUC recommended that the utility company pursue electricity conservation, acquisition of renewable energy sources, and wholesale electricity purchases to meet future demand.
T. Muruganandam v. Ministry of Environment & Forests, Appeal No. 50/2012 (10 November 2014)
Proyecto Central Termoeléctrica Castilla (CGX Castilla Generación S. A.), La Tercera Sala del Corte Suprema (28 August 2012)