Legislators criticize brief on carbon dioxide rules

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TOPEKA - Key legislators were unimpressed today with a state agency’s latest policy statement on regulating carbon-dioxide emissions and said they expect to push ahead with measures to limit the agency’s power.

The chairmen of the House and Senate utilities committees said the “guidance document” from the Department of Health and Environment doesn’t end uncertainty about how CO2 will be regulated in Kansas. The statement said CO2 emissions will be a factor only in considering air-quality permits for new power plants.

The House committee began working today on legislation that is likely to limit the department’s power to set emissions standards on its own. Members also are expected to include provisions to overturn Health and Environment Secretary Rod Bremby’s denial of an air-quality permit for two coal-fired power plants in southwest Kansas.

Bremby cited the plants’ potential CO2 emissions when he rejected an application from Sunflower Electric Power Corp. in October 2007. Backers of Sunflower’s project have argued that Bremby’s decision made the state’s regulatory climate uncertain. The department’s policy statement, issued Monday, was a response.

But the utilities committee’s chairmen, Rep. Carl Dean Holmes, a Republican from Liberal, and Sen. Pat Apple, a Louisburg Republican, said the statement underscores the problem instead of resolving it.

“Today, we decide on electric power plants; tomorrow, maybe, refineries; the next day, cement kilns,” Holmes said. “It goes back to the rule of law. He made the law individually.”

Sunflower also criticized the policy statement. The Hays-based utility still hopes legislators clear the way for its two plants outside Holcomb, in Finney County, and it has legal challenges pending in state and federal courts.

“The press release makes it more evident than ever that a legislative fix is necessary to restore public confidence in the regulatory process,” said Mark Calcara, Sunflower’s general counsel.

Gov. Kathleen Sebelius said in a statement Monday that the policy statement “sets the record straight” and counters a “fear campaign” by Sunflower’s allies. The department said it is trying to ease the transition to expected new federal rules for reducing greenhouse gas emissions.

Agency spokeswoman Maggie Thompson said Tuesday there should be no doubt now that CO2 is an issue only for new power plants.

“The guidance issued yesterday provides an even clearer picture for Kansas businesses on KDHE’s permitting process and how CO2 is considered as a part of that process,” she said.

In its one-page document, the agency said considering CO2 emissions for new power plants will protect Kansans’ health and the environment. The document noted that power plants are the single largest source of CO2 in Kansas, accounting for 34 percent of total emissions.

The document said applicants for such permits must include measures to offset or reduce CO2 emissions. But the state does not yet set specific limits on emissions of greenhouse gases that are linked by many scientists to global warming.

“Doesn’t it just exemplify the problem?” Apple said. “If you look at regulations like the speed limit on highways, it’s posted. You know what the rules are.”

Senate Majority Leader Derek Schmidt, an Independence Republican, said the policy considers new plants’ CO2 emissions while leaving emissions unregulated for existing power plants. Schmidt also noted that the older technology in use in existing plants makes them dirtier than new ones.

“From an environmental standpoint, it’s sort of an enigma,” Schmidt said.

Holmes, Apple and Schmidt supported efforts last year to overturn Bremby’s decision on Sunflower’s permit. Three bills passed with bipartisan support, but Sebelius, a Democrat, vetoed them, and Sunflower’s allies failed to muster the two-thirds majorities needed in both chambers to override her.

But Rep. Joshua Svaty, an Ellsworth Democrat who opposed last year’s bills, described Bremby as “wisely cautious,” saying the policy statement spells out the department’s policy without setting a course that could bring Kansas into conflict with federal policy.

But Svaty acknowledged, “I’m not certain if this affects, at all, the legislation we’re dealing with.”