Global warming and the South Dakota Supreme Court

Global warming is a focus of a new South Dakota Supreme Court decision. In it, the Court unanimously upholds the permitting of a new coal-fired electric generating plant in northeast South Dakota. While the Court acknowledges the potential threat of global warming, it says decisions in this area rest with the executive and legislative branches of government.

The decision stems from a variety of environmental organizations groups appealing the Public Utilities Commission’s decision to grant a permit for a proposed 600 megawatt (MW) coal-fired electric generating plant in Grant County. The plant is projected to produce 4.6 million MW hours of electricity each year, providing energy for consumers in South Dakota, North Dakota, Minnesota, Iowa, Montana, and Wisconsin. In doing so, though, it is estimated to emit approximately 4.7 million tons of carbon dioxide each year and more than 225 million tons over its expected life.

Still, an environmental impact statement determined the plant would produce about 18 percent less carbon dioxide than existing coal-fired plants because of proposed used of more efficient technology. As a result, the statement concluded overall air quality impacts would not “exceed significance criteria.” In contesting the permit, the environmental groups contended the carbon dioxide emissions present a threat of serious injury by contributing to global warming. An industry expert said the evidence was insufficient to conclude the emissions would cause a “costly adverse impact on the environment.”

Based in part on the newer technology the plant would use, the PUC determined the plant would “not contribute materially” to increased production of human-caused carbon dioxide, increasing U.S. emissions by only approximately seven-hundredths of one percent. It concluded the plant “will not pose a threat of serious injury to the environment or to the social and economic conditions of the inhabitants or expected inhabitants in the siting area.”

In upholding the PUC, the Supreme Court recognized the scientific community sees global warming as a critical problem but said it was not one to be resolved by the judiciary. “The social, economic, and environmental consequences of global warming implicate policy decisions constitutionally reserved for the executive and legislative branches. …. No matter how grave our concerns on global warming, we cannot allow personal views to impair our role under the Constitution.” Thus, the nature of any threat posed by this facility and the acceptability of such a threat is left to the PUC applying existing state law. “Resolving what is acceptable for the people of South Dakota is not for this Court. The Legislature and Congress must balance the competing interests of economic development and protection of our environment.”

The decision is also influenced by the (boring to lay people) legal standards that apply to PUC decisions and the Court’s review of them. Yet those matters also undergird a decision that is among the kinds of cases that lead people to demonize the courts. For example, environmental groups could point to it as an abdication of the Court’s duties or that it takes too narrow a focus by looking only at “what is acceptable for the people of South Dakota,” not the synergistic effect for the nation or the world. A decision the other way likely would have become another arrow in the quiver of those who love to complain about so-called “judicial activism.” Even parts of the current ruling may lead some to chirp about activism.

In the course of the decision, the Court recognized that global warming and carbon dioxide emissions are considered harmful by the scientific community. I find it interesting first that even South Dakota has become a forum for battles over global warming — a battleground that likely is going to be revisited more broadly with the proposed Hyperion oil refinery. But it also says a lot for how far concerns and discussions about global warming have come in our individual and political consciousness when a state Supreme Court recognizes it is a legitimate area of concern.

Global warming presents a momentous and complex threat to our planet.

In the Matter of Otter Tail Power, 2008 SD 5 (Jan. 16, 2008)

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