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In re Otter Tail Power Co.

ELR Citation: 38 ELR 20026
Nos. No. 24485, (S.D., 01/16/2008)

The Supreme Court of South Dakota upheld the state's approval of a permit to construct a coal-fired energy conversion facility. Certain nonprofit environmental organizations asserted that the carbon dioxide (CO2) emissions from the plant would contribute to global warming, thereby posing a threat of serious environmental injury. The South Dakota Public Utilities Commission (PUC) concluded that although the facility will emit CO2, the amount will not pose a threat of serious injury to the environment. PUC followed existing legal guidelines in approving the permit. Further, PUC entered a well-reasoned and informed decision when it concluded that the facility would not pose a threat of serious injury to the environment. It addressed the parties' contentions regarding global warming and CO2 emissions and also provided a detailed explanation of why it rejected the findings proposed by the environmental organizations. PUC's decision, therefore, was not clearly erroneous. While global warming and CO2 emissions are considered harmful by the scientific community, what will pose a threat of serious injury to the environment under state law is a judgment call initially vested with the PUC by the legislature. What is acceptable for the people of South Dakota is not for the courts to decide.

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