From: Pete Yost, Associated Press
Published November 1, 2006 12:00 AM

Environmental Groups Defend Clinton-Era Clean Air Program Before Supreme Court

WASHINGTON — Environmental groups are defending a Clinton-era clean air program that the Bush administration is trying to weaken, arguing to the Supreme Court that a power company must install costly pollution controls on its aging coal-fired plants.

The outcome of the case, Environmental Defense v. Duke Energy Corp., could affect three dozen power plants in 10 states where utility companies are challenging federal requirements under the New Source Review program.

At issue is whether the 4th U.S. Circuit Court of Appeals had the authority to handle the case when it ruled in favor of Duke. Also in dispute is whether pollution emissions should be calculated hourly, as Duke wants, or annually, as the environmental groups say.

The enforcement program is aimed at reducing power plant emissions of nitrogen oxide and sulfur dioxide that contribute to smog and acid rain. Retrofitting aging coal-fired plants with the latest pollution-control equipment is costing billions of dollars.

States where utility companies are challenging federal requirements are Alabama, Indiana, Kentucky, Ohio, Pennsylvania, North Carolina, South Carolina, Tennessee, Virginia and West Virginia.

Justice also were hearing arguments Wednesday about whether a two-year-old ruling that excludes witness statements to police from trials when the witnesses do not testify should apply to older cases.

An appeals court said the ruling was retroactive when it threw out Marvin Bockting's 1988 conviction in Nevada for sexually abusing his 6-year-old stepdaughter. The girl's statements to police were used to convict Bockting, but she did not testify at the trial.

The state appealed; other appeals courts have not applied the 2004 high court ruling retroactively.

The power plant lawsuit, among several initiated during the Clinton administration, was inherited by President Bush when he took office in 2001. His appointees to the Environmental Protection Agency pursued the air pollution cases, but they decided not to file any new ones.

A few months after the Duke court victory at the 4th Circuit in Richmond, Va., the Bush administration proposed an industry-friendly rule that is along the lines of what Duke and other utilities always have wanted.

The Duke case's origins date to the 1970s when Congress amended the Clear Air Act to require installation of expensive pollution equipment on newly constructed power plants. Lawmakers gave older plants a partial exemption, believing that the power industry would be phasing out the older facilities.

Instead, the companies revamped their aging plants, enabling them to operate hours longer each day, resulting in production of more electricity and the emission of even more pollutants.

Environmental groups accuse the power companies of gaming the system, engaging in rebuilding while telling regulators they were only doing routine maintenance.

Duke's lawyers say the company conducted its work on plants "in full view and with the knowledge of" EPA and state regulators.

Former EPA attorney John Walke, now clean air director of the Natural Resources Defense Council, says the agency discovered what the utilities were doing only after a systematic review that uncovered huge capital expenditures.

The power plant case is Environmental Defense v. Duke, 05-848. The case on witness statements is Whorton v. Bockting, 05-595.

Source: Associated Press

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