Court Rules 9-0 for Environmental Defense

We argued that Duke Energy must clean up old, polluting plants when it refurbishes them

Posted: 02-Apr-2007; Updated: 14-May-2007

Today's ruling from the nation's high court answers vital questions about cleaning up older plants when they are rebuilt and real-world pollution increases. The Supreme Court's finding in Environmental Defense, et al. v. Duke Energy Corporation means that industrial smokestacks and power plants must meet today's cost-effective pollution control standards when facilities are updated.

"This is a huge win for clean air," said Environmental Defense president Fred Krupp. "This is not a legal abstraction -- it means we'll have cleaner air and less childhood asthma."

The Clean Air Act's New Source Review program (NSR) requires that when large industrial facilities, such as power plants, refineries and chemical plants, expand operations and increase air pollution, they also modernize air pollution controls.

Duke Energy skirted the rules when it renovated its plants

Our suit against Duke Energy, the country's third-largest power company, centered on its costly renovations to 30 coal-fired electric generating units at eight power plants in North Carolina and South Carolina. Many of these facilities had been operated sporadically or not at all and were due to be retired and replaced. Instead, Duke Energy extensively rebuilt them, resulting in significant increases in particulate- and smog-forming pollution, but did not obtain permits nor install pollution control equipment as required by law.
 
"The key question before the Supreme Court was whether our nation's clean air laws will protect Americans from industrial pollution for the next quarter century as they have over the past 25 years," said Environmental Defense senior attorney Vickie Patton. "Twenty-one states, the U.S. Government, the American Lung Association and an unprecedented coalition of medical experts are supporting enforcement of our nation's clean air laws before the Supreme Court."  

The key questions in the case

Our argument against Duke Energy hinged on two crucial points:

• the Fourth Circuit does not have the authority to review national rules that instead must be challenged solely in the U.S. Court of Appeals in Washington, D.C. and
• the Clean Air Act and implementing regulations apply to refurbishments at industrial power plants and factories that increase actual real-world air pollution.

The bottom line of today's unanimous high court's ruling is that the federal government can't ignore the pollution that is fouling our air.  

How the case came to the Supreme Court

The NSR program, a critical tool for local governments to protect human health and the environment, has been the subject of controversial rollbacks by the Bush administration.

The NSR program was adopted in the 1977 amendments to the Clean Air Act, and the Environmental Protection Agency issued regulations to carry out the program in 1980. This case concerned enforcement and interpretation of the 1980 rules.

The exemptions in this case date to 2003, when the Bush administration relaxed the rules to allow plants to avoid installing state-of-the-art pollution equipment if the price of the upgrade was less than 20 percent of the total cost of replacing the facility. Such modifications were to be considered "routine maintenance" under the EPA rules that were overturned.  This high threshold would have allowed thousands of plants to expand operations — and dramatically increase air pollution — without upgrading pollution controls.

In March 2006, the federal court of appeals in Washington, D.C. overturned new EPA exemptions to the program, ascribing them to the agency’s flawed "Humpty-Dumpty" world-view. 

Find out more

• Full text of the decision [PDF] April 2, 2007
• Briefs and filings at American Bar Association
• News release: "A Supreme Day for Clean Air in America: High Court Ruling Puts Pressure on Congress to Act on Global Warming," April 2, 2007
• Listen to Senior Attorney Vickie Patton on NPR's Morning Edition: "High Court Hears Arguments in Air Pollution Case," November 1, 2006