Sierra Club Wins Challenge to RUS Approvals of Coop Plant Expansion

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A federal district court has sided with the Sierra Club in a nearly four-year battle over approvals issued by the Rural Utilities Service (RUS) to a Kansas electric cooperative. The approvals—which were given pursuant to a debt restructuring agreement—would have allowed Sunflower Electric Power Corporation to expand its coal-fired plant in Holcomb, Kansas, by 895 megawatts. The ruling could have significant implications for RUS borrowers.

In this case, public financing was not at issue—private funds would finance the 895-megawatt expansion. But the Sierra Club complained that the RUS approvals were invalid because the agency did not perform an environmental review under the National Environmental Policy Act (NEPA).

RUS and Sunflower had argued that NEPA review was not required under 7 C.F.R. § 1794.3. That regulation states: “Approvals provided by RUS pursuant to loan contracts and security instruments, including approvals of lien accommodations, are not actions [under NEPA].”

Sunflower also had argued that the issue was moot since RUS approvals had already been granted, and RUS had no authority to impose environmental mitigation measures on the project.

In a memorandum opinion released this week, Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia concluded in pertinent part:

-RUS’s involvement in the expansion was a “major federal action” under NEPA (thus triggering environmental review) due to the control RUS had through its debt restructuring contracts with Sunflower, which gave RUS the right to prior approval of any agreement or arrangement for development of the Holcomb expansion;

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Published In: Administrative Agency Updates, Business Organization Updates, Energy & Utilities Updates, Environmental Updates, Finance & Banking Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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