Why the Las Brisas Coal Plant Air Permit Was Reversed

Photo by StateImpact Texas

Piles of petroleum coke sit uncovered on the ship canal in Corpus Christi.

Update: The company financing the project said on Jan. 23, 2013 that they are going out of business and suspending the plant. 

In May, a Travis County District judge sent a letter to the Texas Commission on Environmental Quality (TCEQ) saying that he intended to revoke an air permit for a proposed coal plant in Corpus Christi. This week Judge Steven Yelenosky of the 345th Judicial District Civil Court made the order official, setting back construction on one of the few coal plants still being planned in Texas.

The plant, called Las Brisas, would use petroleum coke — carbon solids left over from refining — for power generation in a way much like coal, with much the same emissions. It was first proposed in 2008, and is the only proposed coal plant within a city’s limits in the entire country, according to the Sierra Club. It would sit on the northern side of the Corpus Christi ship channel, across from a residential area known as “Refinery Row,” which already sits in the midst of six major refineries.

The plant was given an air permit in January 2011 by the TCEQ. A challenge to that permit was brought by a coalition of environmental groups, including the Sierra Club, the Environmental Defense Fund (EDF), the Corpus Christi Clean Economy Coalition, and several Texas cities. Now Judge Yelenosky has ruled in those groups’ favor, reversing the air permit.

In his May letter, the judge found several things wrong with how the TCEQ processed the permit, and said it failed to meet the requirements of the Clean Air Act, among other issues. Tuesday’s order lays out in detail what the TCEQ did wrong. The TCEQ would not agree to an interview about the ruling, and would only give StateImpact Texas a prepared statement.

In that statement, the TCEQ says that it “believes the permit is protective as issued, and we’re currently evaluating how next to proceed in light of the judgement by the judge.”

Erin Fonken of the Environmental Integrity Project, one of the attorneys who brought the suit, tells StateImpact Texas that the group had to identify significant legal errors by the TCEQ in order to get the permit reversed.

In the order, which you can read below, Judge Yelenosky found that in four cases, the TCEQ “erred as a matter of law” in approving the permit. Most notably, Fonken says, is that the TCEQ failed to require Las Brisas to demonstrate that it could meet standards that reduce toxic pollutants like mercury (collectively known as the MACT standards). “They [the TCEQ] really have to make a clear error to get a reversal,” she says.

Photo courtesy of 345th District Court

Judge Stephen Yelenosky has reversed the Las Brisas air permit.

So did the TCEQ simply rubber-stamp a coal plant that wasn’t up to standards? “Let’s just say I’ve never heard of the TCEQ denying an air permit to a power plant,” Fonken says. “I mean, here we had a recommendation to the TCEQ from the administrative law judges that they shouldn’t issue this permit as is, and they went ahead and did it anyways. And I think that’s just the standard practice there.”

The reversal of the air permit puts Las Brisas in the same league as several other proposed coal power plants in Texas, which is to say, mostly stalled. Another proposed petroleum coke power plant on the Gulf Coast allowed its permit to start construction expire in February. And the proposed White Stallion power plant in Matagorda County, which would use both coal and petroleum coke, doesn’t have a water permit to operate from the Lower Coloardo River Authority, though it did survive a recent battle over its air permit at the TCEQ. (The plant is now looking at a dry cooling system that uses groundwater instead.)

“I think with the climate right now — natural gas being low, renewables being so much more competitive, and the EPA finally tightening down on some overdue protections to these types of power plants, you just don’t have people lining up to build [coal power plants],” Fonken says. “These are just kinda the last few, the stragglers.”

Now the air permit goes back to the TCEQ. “Hopefully we’ll have a says in what happens,” Fonken says. “We think they need to make corrections to their application and go through public notice again, because the changes are going to be substantial.”

Read the full order on the Las Brisas power plant: