Duke Energy and Dirty Air
SELC Supreme Court victory signals clean-up of dirtiest coal-fired power plants
©SELC
The Supreme Court's decision in the case against Duke Energy determines air pollution policy for power plants across the Eastern U.S.
The U.S. Supreme Court has sided with the Southern Environmental Law Center in our case to dramatically cut emissions from outdated coal-fired power plants, the single largest source of harmful soot and smog. SELC’s major win against Duke Energy has broad implications for the clean-up of America’s dirtiest power plants, and helps sets the stage to begin addressing the issue of global warming.
In a unanimous ruling April 2 2007, the Supreme Court held that the Fourth Circuit Court of Appeals erred when it allowed Duke Energy to make major overhauls at its coal-burning power plants resulting in substantially more air pollution. The Court’s ruling upholds a core Clean Air Act program in the face of government rollbacks and industry noncompliance and delay.
It was part of one-two punch delivered by the Court, which ruled the same day in a separate case that the U.S. Environmental Protection Agency has the authority to regulate carbon dioxide, the principal global warming pollutant.
SELC has long sought to compel utilities to comply with the Clean Air Act’s “New Source Review” (NSR) program, which requires industry to install modern pollution controls when overhauling their facilities.
Beginning in 1999, EPA filed suit against 13 of the nation’s largest utilities, including Duke Energy, for violations at power plants in the South and Midwest. Concerned that the Bush Administration would not aggressivley pursue these enforcement actions, SELC intervened in the Duke Energy case on behalf of Environmental Defense, Sierra Club and Environment North Carolina. After the Fourth Circuit ruled against us in 2005, we sought and won Supreme Court review in 2006, despite EPA’s opposition.
The case concerns renovations Duke Energy made from 1988 to 2000 at seven power plants in North Carolina and one in South Carolina worth many millions of dollars. The company called its projects “modernizations,” yet avoided installing controls that are proven to cut emissions of sulfur dioxide and nitrogen oxides by as much as 90 percent, as well as reduce mercury pollution. Sulfur dioxide has been shown to cause premature death and exacerbate asthma and other cardiopulmonary disease. It is also the major source of acid rain.
Duke Energy claimed the projects did not trigger NSR because they did not increase hourly emission rates, an argument the Court explicitly rejected. But, as we argued before the Supreme Court, an overhauled plant can operate for more hours per year, so even if hourly emissions are the same, annual emissions can increase substantially, putting the public at greater risk. The Supreme Court agreed with us that the annual test is required, and sent the case back to the Fourth Circuit to apply that standard.
Under the Supreme Court decision, utilities will face the choice of installing modern pollution controls, or replacing the aging facilities with contemporary, cleaner-burning facilities that will also go a long way toward reducing greenhouse gases.
