The Kansas attorney general’s office asked a federal judge Tuesday to dismiss a lawsuit filed by Sunflower Electric Power Corp. that seeks to overturn the denial of an air quality permit needed to proceed with a coal plant expansion in Holcomb.

In the response to Sunflower’s complaint, the attorney general’s office argues that the U.S. court does not have jurisdiction over the case.

The response further points out that the denial of the air quality permit is the subject of a legal challenge filed by Sunflower with the Kansas Department of Administrative Hearings that is still pending.

A spokesman for the department said no hearings on that legal challenge were scheduled, but that movement could occur sometime in mid-December.

A clerk in the chambers of Judge Eric Melgren, who has been assigned the federal case, said Sunflower would have 23 days to respond to the attorney general’s office response.

The federal suit filed by Sunflower asserts that denial of the air quality permit was politically motivated and violated the Constitution’s equal protection clause.

Sunflower also contends that denial of the permit violated the commerce clause of the Constitution, as it was based partly on the accurate assertion by the Sebelius administration that some power from the expanded plant would be exported to other states.

In denying the permit in October, 2007, Kansas Department of Health and Environment Secretary Rod Bremby contended that his denial was due to concerns over carbon-dioxide emissions, which some scientists believe is a contributor to climate change.

Sunflower’s petition argued that Bremby denied the air quality permit despite a recommendation by his professional staff that it be approved. The suit also points out that carbon-dioxide emissions are not regulated in Kansas or by the U.S. government.

The coal plant was a topic of heated discussion and legislative wrangling during the 2008 legislative session. Bills that would have authorized construction of the plant expansion, supported by lawmakers from both political parties, were vetoed three times by Gov. Kathleen Sebelius, and lawmakers were unable to find sufficient votes to overturn those vetoes.

Failure to override the vetoes was cited as one of the reasons why Melvin Neufeld, R-Ingalls, was ousted Monday as speaker of the Kansas House by Mike O'Neal, R-Hutchinson.

Several legislators who won leadership posts said Monday they intended to re-file legislation this year that would allow the plant to proceed.

 - Phil LaCerte

The week in Review