From: Pete Yost, Associated Press
Published April 3, 2007 12:00 AM

U.S. Supreme Court Gives Boost to Environmental Groups on Power Plant Cleanup

WASHINGTON -- The U.S. Supreme Court supported a federal clean air initiative aimed at forcing power companies in the U.S. to install pollution control equipment on aging coal-fired power plants.


In a unanimous decision Monday, the justices ruled against Duke Energy Corp. in a lawsuit originally brought by the administration of President Bill Clinton, part of a massive enforcement effort targeting more than a dozen utilities.


Most companies settled with the government, but several cases involving more than two dozen power plants in the South and the Midwest are pending. The remaining suits demand fines for past pollution that, if levied in full, would run into billions of dollars.


Monday's decision will help protect the health of millions of Americans harmed by industrial air pollution, said Sean H. Donahue lead legal counsel in the case for Environmental Defense and other environmental petitioners.


The justices ruled that a U.S. appeals court overstepped its authority by implicitly invalidating 1980 Environmental Protection Agency regulations, interpreting them in a way that favored Duke Energy. The appeals court's decision "seems to us too far a stretch," Justice David Souter wrote.


The underlying issue was whether emissions increases should be measured on an annual basis, an approach favored by the EPA.


Duke and other utilities argued that the standard for triggering Clean Air Act requirements is an hourly rate increase in emissions. That way, companies can run coal-fired plants without having to install additional pollution controls, as long as the hourly emissions rate does not rise. Annual pollution would rise, however, when the modernized plants operate longer hours.


"What these provisions are getting at is a measure of actual operations averaged over time, and the regulatory language simply cannot be squared with a regime" that Duke favors, Souter wrote.


Duke vowed to continue the battle in the lower courts, saying that the question it lost on in the Supreme Court was a narrow one. The company expressed confidence it will be able to demonstrate that its plants are not subject to the requirements of the program called New Source Review.


The enforcement program is aimed at reducing power plant emissions of nitrogen oxide and sulfur dioxide that contribute to smog and acid rain. Sulfur dioxide is the leading cause of acid rain.


"We continue to believe we have solid defenses against the government's claims," said Marc Manly, Duke Energy group executive and chief legal officer.


Frank O'Donnell, president of the nonprofit Clean Air Watch, said the Supreme Court ruling will only translate into cleaner air if the Bush administration "actually begins aggressive enforcement of the Clean Air Act. There is great doubt the administration will do that."


The administration has already proposed to relax New Source Review requirements for power plants along the lines sought by Duke.


The utility industry has long resisted installing costly pollution controls under New Source Review. It fought vigorous campaigns against the program starting in the 1980s, recently battling it out with regulators when sued in federal courts.


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