Oct 27 - The Charlotte Observer (Charlotte, N.C.)

As Duke Energy Corp. pushes for final approval of its coal-fired plant project in the Blue Ridge foothills, opponents look westward for hope.

Kansas' top regulator this month unexpectedly blocked construction of a $3.6 billion coal-fired power plant in the western part of the state.

His reason -- carbon dioxide emissions could harm humans by adding to global warming. That the gas is unregulated by his state or the federal government didn't stop him.

Environmentalists say Duke's project at its Cliffside power plant should be stopped for the same reason. The Charlotte-based utility still needs an N.C. air quality permit, and opponents plan a legal argument based on the Kansas decision to try and block it.

"The door is open now. I think it forces N.C. regulators to take a new look at Cliffside and to incorporate the risk of climate change into their decisions," said Michael Shore, an air quality specialist formerly of Environmental Defense and now co-owner of Asheville solar company, FLS Energy.

Coal-fired power plants are a major source of carbon dioxide, which most scientists agree is warming the planet. The gas is unregulated in North Carolina.

The Kansas decision signals an important shift for climate change science from being openly maligned and ridiculed only a few years ago toward mainstream acceptance and consideration in public policy decisions. It's believed to be the first time carbon dioxide emissions have been cited to deny an air quality permit.

Sunflower Electric Power Corp. and state lawmakers in Topeka have vowed to challenge the decision from Rod Bremby, secretary of health and environment. He had the support of the Kansas governor and her attorney general, which provided him the legal argument.

The N.C. Utilities Commission in February approved Duke's $2.4 billion plan to expand Cliffside, an existing coal-fired power plant about 55 miles west of Charlotte. The project would add an 800-megawatt power unit and close down four 1940s-era units.

Duke still needs the N.C. Division of Air Quality to give an air quality permit. The period to file public comments is over at the end of the month, and a decision usually comes within 30 days, said division spokesman Tom Mather.

Division director Keith Overcash has the power to deny the permit, but it's not considered likely: The division staff already issued its draft for the public to inspect, which means it generally agrees with Duke's plan. The division's responsibility is to make sure Duke follows state environmental law, Mather said.

"We're not gatekeepers," he said. "It's very rare we would deny a permit."

Overcash is aware of the Kansas decision and has discussed it with staff, Mather said. There's no N.C. regulation for carbon dioxide, and companies like Duke could sue if permits are denied because of it, he said.

Gudrun Thompson, a lawyer with the Southern Environment Law Center in Chapel Hill, said her group disagrees and points to the Kansas decision.

At issue there and in North Carolina is not whether carbon dioxide is mentioned in state law, but whether the gas can be considered pollution, she said.

In Kansas and North Carolina, state law gives the top regulators broad power over harmful pollutants, she said. And the U.S. Supreme Court ruled 5-4 in April that carbon dioxide can be regulated under the federal Clean Air Act by the U.S. Environmental Protection Agency.

"The division has the power," she said. "It takes a few steps to get there."

Her group plans to file the argument and others with the division by the end of the month, she said.

Duke says it's following state and federal law and that the expansion of Cliffside is necessary to meet future power demand in the growing Charlotte region. Thousands more customers are signing up for new service each year, the company said.

During record heat in August, peak power demand reached an all-time high. Duke at the time pointed out the need for new power generation.

The company also plans to build two natural gas plants in North Carolina. But with new coal, Duke says it's ensuring a mix of fuel choices to keep electricity rates below the national average. That protects against the uncertainty of future nuclear projects and the sometimes-extreme price fluctuations of natural gas.

Jim Owen, spokesman for the industry-backed Edison Electric Institute, said the industry believes global warming is a problem that must be dealt with. But demand for power is projected to increase 40 percent by 2030, he said.

Coal, which currently produces about half the nation's and North Carolina's electricity, must play a part in the energy equation, in addition to nuclear, natural gas, energy efficiency and renewable sources, such as wind, he said.

The lights have to stay on, he said. "The Kansas decision is definitely a concerning one."

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