Court of Appeals to consider reversal of Judge Moore's ruling

The Georgia Court of Appeals announced last week that it would hear the appeals to reverse a Fulton County Superior Court judge's decision to throw out the permits issued by the Environmental Protection Division of DNR for the construction of a coal fired power plant in Early County.

Judge Thelma Wyatt Cummings Moore, with a broad brush ruling, threw out the permit on every single claim filed by the Sierra Club lawyers, including the fact the the permit did not include any CO2 emission limit.

The Georgia Attorney General and Longleaf Energy Associates filed applications for appeal stating, "Judge Moore's 19-page ruling reversing Administrative Judge Stephanie Howells' 108-page decision and three other well-reasoned and detailed orders is replete with reversible error."

The Sierra Club had 10 days to respond to the applications for appeal. The Court of Appeals' deadline to notify the parties if they would accept the application for appeal was Aug. 29. The Court granted the applications Aug. 20.

A notice of appeal has been filed with the Fulton Superior Court along with a request that the case records be transferred to the Court of Appeals.

The Court of Appeal will set a schedule for a briefing once it receives the Superior Court's records.

"Based on the level of Amici support and the publicity the ruling has generated, we feel our chances are very good the court will take the case," project manager Mike Vogt stated when the applications for appeal were filed.

The Georgia Chamber, joined by over 100 leading businesses, trade organizations, local chambers of commerce, elected officials and others, filed an amicus brief asking the state Court of Appeals to overturn Judge Moore's unprecedented ruling that carbon dioxide emissions are regulated under the federal Clean Air Act.

Moore's ruling also sparked a number of critical editorials in publications across Georgia and the nation.

The ruling, which has been watched around the nation, could drive up energy costs and stifle economic development across Georgia for years to come, according to Georgia Chamber President and CEO George Israel.

Israel noted that neither the U.S. Environmental Protection Agency nor any state environmental agency has ever taken the position that CO2 is currently regulated under the Clean Air Act. Neither has the U.S. Supreme Court, nor any other court in the nation.

The ruling could also hold up hundreds or thousands of new construction projects in Georgia by subjecting them to costly, time-consuming Clean Air regulation, Israel said. Any sizable new building that relies on CO2 producing natural gas for heat would be susceptible to regulatory delay — from office buildings and shopping malls to churches, schools and hospitals.

"We trust the Georgia Court of Appeals will undo this ill-considered decision," Israel said.