Court Sides With Environmentalists Over Air Pollution

Court Sides With Environmentalists Over Air Pollution



   
April 2007 – The U.S. Supreme Court 
today unanimously upheld a federal program designed to clean 
up the nation's oldest coal-fired power plants, vacating a 
lower court ruling that has derailed major air pollution 
enforcement efforts against Duke Energy and other utilities. 
The court rejected a ruling by the 4th U.S. Circuit Court of 
Appeals that found Duke Energy did not violate provisions of 
the Clean Air Act when it upgraded eight coal-fired power 
plants in North and South Carolina during the late 1980s and 
1990s. 
The Supreme Court ruled that the lower court's interpretation 
of the law was "too far a stretch" and ordered the court to 
reconsider its decision. 
Environmentalists praised the ruling and said it is a major 
victory in a broader effort, launched by the Clinton 
administration, to clean up older coal-fired power plants. 
"The decision is going to reverberate throughout the electric 
utility industry and have a major impact on the air quality in 
dozenvironment news of states," said NRDC attorney John Walke. 
"It also 
puts the final nail in the coffin of the Bush administration's 
ceaseless six-year effort to monkey-wrench the federal laws 
requiring power companies to bring half-century-old plants up 
to safe environmental standards." 
The case was originally brought against Duke Energy by the 
U.S. Environmental Protection Agency (EPA) in 2000 and 
illustrates the confusion with federal rules that aim to clean 
up older power plants. 
The dispute centers on a Clean Air Act provision enacted in 
1980 known "prevention of significant deterioration" (PSD). 
The provision requires utilities obtain a permit from EPA 
before making a modification to a power plant based on a 
definition in another part of the law, known as the New Source 
Performance Standards (NSPS). 
But EPA's regulations interpret "modification" differently for 
the NSPS regulations, enacted in 1975, and the PSD provision. 
One of the plant's at the center of the dispute, the Buck 
Steam Station is a four-unit coal-fired generating station 
located on the Yadkin River in North Carolina.  
The NSPS regulations require the use of the best available 
pollution control technology when a modification would 
increase hourly emissions, whereas the PSD rules require a 
permit only when a major modification would increase annual 
emissions. 
EPA filed suit against Duke Energy alleging its upgrades 
violated the PSD provisions and that the company failed to 
obtain the appropriate permits for its modifications. 
Duke Energy argued that it did not need the PSD permits 
because its upgrades did not increase hourly emission rates. 
But EPA and the environmental groups who intervened in the 
case said annual emissions, not hourly emissions, are the true 
indicator of the impact of a modification on operations as the 
modifications allowed a plant to run longer hours, thus 
producing more pollution. They argued that EPA has the 
authority to use annual emissions in order to define a 
modification that triggers the need for modern pollution 
controls. 
The appellate court agreed with Duke Energy, but the Supreme 
Court rejected its decision. 
The 4th Circuit's interpretation "amounted to the invalidation 
of the PSD regulations … and was not a permissible reading of 
their terms," wrote Justice David Souter, who authored the 
unanimous opinion. 
The PSD regulations "may be no seamless narrative, but they 
clearly do not define a 'major modification' in terms of an 
increase in 'the hourly emissions rate,'" Souter wrote. 
The court remanded the case back the Fourth Circuit, which 
must now apply the annual emissions test to determine if Duke 
Energy's modifications required the installation of new 
pollution controls. 
Duke Energy released a statement expressing its disappointment 
with the ruling as well as its view that the court's decision 
is a narrow one that only considered the hourly emissions 
standard, not what constitutes modifications that trigger the 
requirement of stricter controls under the Clean Air Act's New 
Source Review (NSR) program. 
"We continue to believe we have solid Defenses against the 
government's claims and will show in the lower courts that our 
power plant projects were not subject to NSR," said Marc 
Manly, Duke Energy group executive and chief legal officer. 
Blan Holman, senior attorney with the Southern Environmental 
Law Center, said the case demonstrates "the dangers of 
'grandfathering' old polluters." 
"Almost two generations of Americans have had to breathe 
pollution that could have, should have been cleaned up long 
ago," Holman said. "But industry chose to spend hundreds of 
millions to prop up dirty plants instead of building cleaner 
ones." 
The decision is "a victory for good government," added Frank 
O'Donnell, president of the Clean Air Watch. 
But O'Donnell noted that the Bush administration is continuing 
with a plan to enact further changes to the NSR program, 
pursuing revisions that are at odds with the argument used to 
win the Duke Energy case before the Supreme Court. 
"The Bush administration ought to throw this industry-friendly 
rulemaking into the trash can and go back to enforcing the 
law," O'Donnell said. 

---