Supreme Court Reinstates EPA Power Plant Lawsuits

WASHINGTON — The Supreme Court ruled Monday that lower courts misread the Clean Air Act when they threw out an EPA lawsuit claiming that Duke Energy skirted rules aimed at curbing pollution from coal-burning power plants.

The unanimous decision was one of a pair of rulings that cheered environmentalists. In the other, the court held that the Environmental Protection Agency is required under the federal air pollution law to regulate carbon dioxide in automobile exhaust because of its effect on global warming.

The power plant ruling likely will affect similar lawsuits in Alabama and Ohio that have been on hold pending Supreme Court action.

"The decision is going to reverberate throughout the electric utility industry and have a major impact on the air quality in dozens of states," said John Walke, a lawyer with the Natural Resources Defense Council.

However, it could still take years before the controls are in place, said Blan Holman, of the Southern Environmental Law Center.

"It's a very frustrating experience," said Holman. "The litigation is complex and very costly. Utilities could decide tomorrow to clean their plants up, but if what's going to happen is more litigation, more delay, it could take a while."

Monday's ruling sends the case back to lower courts, and Duke Energy said in a statement that it was confident it would show the EPA rules do not apply to its plants. "We continue to believe we have solid defenses against the government's claims," said Marc Manly, Duke's chief legal officer.

EPA has continued to press the lawsuits even though the Bush administration has asked Congress to repeal the language under which they were filed.

The cases have been meandering through several federal courts ever since the Clinton administration in 1999 charged owners of coal-burning power plants with cheating on air pollution laws.

The suits accused Duke, Southern Co. and eight other power companies, along with the Tennessee Valley Authority, of skirting requirements to install new pollution controls on old coal-burning plants.

Among plants cited in the lawsuits were Georgia Power Co.'s Bowen plant near Cartersville and the Scherer plant in Monroe County.

The old plants were exempt from Clean Air Act provisions requiring installation of the best available equipment to control smog-producing oxides of nitrogen, acid rain-causing sulfur dioxide and soot when new sources of these pollutants are built.

However, the exemption is supposed to end if owners of the old plants make significant renovations that increase emissions of the pollutants. In that event, the facilities were to be treated as "new sources" of pollution under a provision called "new source review."

"It is our hope that new source review ultimately will not be applicable to facts like those" in the Duke case, said Scott Segal, director of the Electric Reliability Coordinating Council, a lobbying group that represents Southern Co. and other owners of coal-burning power plants.

"Both the environment and consumers benefit when the new source review program is interpreted in a flexible and pragmatic fashion," he added.

In the Duke case, the North Carolina-based utility had admitted that its plant renovations had increased the overall amount of pollution. However, lower courts ruled that changes the company made did not increase the pollution per hour at each plant, and therefore did not trigger the new source review language.

In a decision written by Justice David Souter, the Supreme Court held that the lower court decisions had stretched the legal language too far.

Souter said the law governing the new source review provisions makes no mention of the hourly rate of pollution, just the overall amount that is generated.