Supreme Court takes up case against Duke Energy

Chapel Hill – The U.S. Supreme Court announced today that it will hear arguments from the Southern Environmental Law Center in a Clean Air Act case against Duke Energy. SELC, representing Environmental Defense, Sierra Club and Environment North Carolina, joined the U.S. Environmental Protection Agency in the case which charges that Duke Energy violated "New Source Review" requirements by conducting massive refurbishments of old power plants without installing pollution reduction controls.

"We are very pleased for the Supreme Court to hear this case," said Blan Holman, senior attorney with SELC. "This is a significant case, with implications for pending New Source Review enforcement actions in Alabama and elsewhere, and also for the administration's ongoing attempts to weaken the permitting program through rulemaking."

Under the Clean Air Act's New Source Review permitting program, coal-fired power plants are required to install pollution controls when overhauling their facilities in a way that will result in increased emissions. Older plants were given "grandfathered" status, exempting them from the NSR requirements with the idea that the utilities would either retire their biggest polluting plants or meet modern pollution standards upon renovation.

The Environmental Protection Agency and SELC filed suit against Duke Energy for exploiting their grandfathered status and making major modifications to eight of its coal-fired power plants in the Carolinas without installing modern pollution controls, emitting hundreds of tons of excess pollution in the process. EPA filed similar cases against utilities in the South and Midwest but the case against Duke Energy is the only such enforcement case to reach the U.S. Supreme Court.

Under the guise of "routine maintenance" Duke Energy avoided installing NSR –required pollution controls that would cut emissions by as much as 90 percent. Instead, the utility company invested tens of millions of dollars – often up to seven times the cost of the original unit - to extend the lives of its units, allowing air pollution to increase by hundreds of tons each year.

Duke Energy made the modifications between 1988 and 2000 at eight plants in North and South Carolina, including 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, to which power plant emissions contribute.