The Campaign

What was proposed

NEVCO Energy Company LLC, based in Bountiful, proposed the plant through a project entity called Sevier Power Company. The design was a 270-megawatt coal-fired generating station using circulating fluidized bed combustion, sited on roughly 350 acres of farmland about a mile from Sigurd, in the valley north of Richfield.

The site sits about a mile from Sigurd, in the narrow valley that also holds Richfield. The communities sit in it together, and the air that collects there in winter stays there. Capitol Reef National Park and the scenic country of the Colorado Plateau are close enough that visibility impacts were part of the public argument from the beginning.

The power itself was not for Sevier County. It was a merchant plant, built to sell into the regional market. Opponents said it would go to California and Nevada; the company disputed that.

The approval order required a stack at least 460 feet tall, and allowed the plant to burn up to a million tons of coal a year.

The emissions figures that circulated during the campaign, roughly 1,278 tons of carbon monoxide a year, 1,066 tons of nitrogen oxides, and 234 tons of sulfur oxide, were not estimates pulled from the air. The approval order set limits by rate rather than by annual tonnage: 292 pounds of carbon monoxide per hour, 0.1 pounds of nitrogen oxides per million BTU, 0.022 pounds of sulfur dioxide per million BTU on a 30-day average. Run continuously for a year, 292 pounds an hour is 1,279 tons. The campaign was quoting the permit back to the state.

How the group started

It started with a press conference. Jim Kennon remembered county commissioners announcing that the power plant was coming, and the chair opening with “Boy, have we got good news for you!” Kennon, by his own account the only person in the room who objected, went home and wrote a letter to the editor of the Richfield paper.

Cindy Roberts, a third-generation alfalfa farmer from Sigurd, read it and called him. The two of them started Sevier Citizens for Clean Air and Water together, convening meetings in parks around the county.

Kennon dated that founding to 2001. The group’s own later account says it was organized in 2002 and incorporated as a Utah 501(c)(3) nonprofit in 2005, and press coverage in December 2003 still called it newly formed. All three can be true of a group that began informally and filed paperwork later. Kennon served as president. Dick Cumiskey was a co-leader and later became president.

There was no email list to speak of. The group used a phone tree, ran ads in the paper, and announced meetings on the radio.

The motivation was health before it was anything else. Kennon put the case plainly in 2009: coal is dirty, it pollutes the air, and with other options available he could not see why people here should have to breathe worse air.

The group registered as a Utah nonprofit and operated as a small charity throughout. It never had a budget that would have supported the campaign it ended up running.

The permit

On October 12, 2004, the Executive Secretary of the Utah Division of Air Quality, Richard W. Sprott, signed an approval order granting Sevier Power a Prevention of Significant Deterioration permit under the Clean Air Act.

Two challenges followed within six weeks. Sevier Citizens for Clean Air and Water filed a Request for Agency Action on November 1, 2004. The Utah Chapter of the Sierra Club and the Grand Canyon Trust filed theirs on November 12, 2004.

The permit carried a provision that would eventually matter more than anything else in it. Under Utah rule R307-401-11, if construction had not begun within eighteen months the Division had to review the order and could revoke it. That date fell on April 12, 2006.

In November 2005, with no construction underway, Sevier Power asked the Division to hold the eighteen-month clock in abeyance. April 12, 2006 came and went. Nothing had been built.

Building a coalition

What began as neighbors writing letters became something considerably larger.

The Utah Chapter of the Sierra Club brought its Utah Smart Energy Campaign, run by Tim Wagner, which handled statewide media and turned out crowds for county hearings. The Grand Canyon Trust brought regional weight and the Colorado Plateau argument, and was a co-petitioner in the 2006 standing case. Western Resource Advocates supplied attorney Joro Walker, which is how a rural citizens’ group ended up with appellate representation it could not have afforded.

Doctors from Utah Physicians for a Healthy Environment and organizers from Utah Moms for Clean Air brought the health case to public meetings, alongside researchers and professors from Brigham Young University. Shaunna Bastian of Utah Moms for Clean Air, who lived about a quarter mile from the proposed site, became one of the local voices quoted in state coverage. “I will wake every single morning,” she told the Deseret News in December 2007, “open my blinds and look at this thing.” A separate local group, Save Our Air and Resources, formed as well, and it was as members of SOAR that Kennon and Cumiskey would eventually appear before the Utah Supreme Court.

On the other side, the company ran a conventional public-relations campaign. Pat Shea, a former director of the Bureau of Land Management under President Clinton, worked for NEVCO and spoke for the project publicly. “Clean Coal Technology” signs went up in downtown Richfield and at the plant site. There were radio spots and newspaper ads. The night before one planning commission hearing, the company held a free picnic with a gun raffle.

The county process

Zoning ran through Sevier County, on a separate track from the state air permit, and it moved slowly.

The county Planning Commission gave concept approval on July 12, 2006. Preliminary approval followed on December 12, 2007. Sevier Power filed for final approval the next day, and the Planning and Zoning Department certified the application complete on December 19, 2007.

That date matters. It later became the basis for the company’s argument that its application had to be judged under the rules in effect before county voters changed them.

Proposition One

By early 2008 the group had concluded that the decision should not rest with five people in a county building.

Volunteers gathered more than 1,500 signatures across Sevier County in the spring of 2008 for a citizen initiative that came to be called the Right to Vote measure. It would amend county zoning to require majority approval by county voters before any conditional-use permit could be issued to a coal-fired power plant.

On July 7, 2008, the county commission placed the initiative on the November ballot.

Sevier Power sued to keep it off the ballot, and a Sixth District Court judge ordered it removed. The petition reached the Utah Supreme Court on September 19. The Court heard argument on October 8 and ordered the initiative reinstated the same day, with the written opinion following on October 17.

That opinion, Sevier Power Co. v. Hansen, 2008 UT 72, struck down the section of the Utah Election Code that barred citizens from using initiatives on land use questions. It is the least known of the three Supreme Court decisions this campaign produced and arguably the broadest.

On November 4, 2008, Proposition One passed. The county’s official canvass, certified on November 17, recorded 4,692 votes for and 3,329 against, 58.5 percent to 41.5 percent. Early press reports gave slightly lower numbers taken on election night.

Sevier County had voted, by a margin of more than 1,300, to give itself a veto.

The company’s response was that the vote changed nothing, because its application had been complete since December 2007. Kennon’s response, in the Salt Lake Tribune the following week, was that the group was one step from doing away with the plant.

The last year before the ruling

The county asked the state for an opinion, and on March 26, 2009 the Office of the Property Rights Ombudsman issued Advisory Opinion No. 65. It concluded that Sevier Power held a vested right to have its December 2007 application judged under the ordinances in effect before Proposition One passed. The opinion was advisory, not binding, but it meant the ballot victory alone would not be enough.

The two air permit appeals were still pending. Both were decided on the same day that December.