Supreme Court receives arguments in national clean air case

Chapel Hill - The U.S. Supreme Court will receive arguments today from the Southern Environmental Law Center and others in a Clean Air Act case against Duke Energy that could lead to the clean up of power plants across the Eastern United States (see attached map). These plants emit 1.6 million tons per year of sulfur dioxide, 15 percent of the SO2 emitted by all power plants nationwide. A favorable ruling by the Supreme Court could result in those emissions being reduced by 90 percent. Sulfur dioxide contributes to acid rain, increases ozone pollution and can exacerbate asthma and other cardiopulmonary disease.

SELC, representing Environmental Defense, Sierra Club and Environment North Carolina, charges that Duke Energy spent hundreds of millions of dollars "modernizing" eight coal-fired power plants in North and South Carolina without installing pollution controls required under the Clean Air Act's "New Source Review" program. The case against Duke Energy is expected to set a nationally-leading precedent.

After a Fourth Circuit Court of Appeals ruling that favored industry, the federal government, which originally brought the suit against Duke Energy, opted not to seek Supreme Court review, and in fact, opposed the request made by SELC. Despite the government's opposition, in May the Supreme Court granted the petition and announced it would hear the case, a highly unusual if not unprecedented rebuke to the federal administration.

Similar NSR suits are pending against the nation's largest utilities targeting plants in the South and Midwest. Pollution from those plants migrates across state borders and contributes to air quality problems in nearby regions, including the northeast.

According to EPA data, in 2005, the units subject to these NSR enforcement suits emitted over 1.6 million tons of sulfur dioxide, and over 300,000 tons of nitrogen oxide, a prime contributor of ground level ozone ("smog"), which can damage lung tissue and reduce lung function, as well as small particle pollution that can cause and worsen respiratory disease such as emphysema and bronchitis, and aggravate existing heart disease.

Under the New Source Review program, the nation's largest polluting plants are required to install controls when overhauling facilities in a way that will result in increased emissions. Claiming to be engaged in "routine maintenance," Duke Energy conducted massive renovations, at a total cost of several hundred million dollars, without installing any NSR controls whatsoever. Those controls would cut emissions of a variety of pollutants, including SO2 and nitrogen oxides, by as much as 90 percent, and would have the ancillary effect of reducing mercury emissions. Fish advisories in effect throughout the Carolinas are due in part to mercury deposited into streams and lakes from air pollution.

Duke Energy made the modifications between 1988 and 2000 at seven plants in North Carolina and one plant in South Carolina. The plants are Belews Creek, Buck, Cliffside, Dan River, CG Allen, Marshall and Riverbend plants in North Carolina and the W.S. Lee plant in South Carolina. Many of these units are located in areas that are in violation of federal health standards for ozone, soot, or both. Power plant emissions contribute to those conditions.