Chris Keane  /  AP file
Duke Power, the owner of this power plant in Mount Holley, N.C., and dozens of others, is at the center of a case being heard by the U.S. Supreme Court.
updated 10/31/2006 10:45:38 AM ET 2006-10-31T15:45:38

When the Bush administration lost an important air pollution case before an appeals court last year, it did an interesting about-face and sided with the electric power company that won.

Unfortunately for the administration, environmental groups persuaded the Supreme Court to take up the case over the objections of the government.

Now the administration’s switch is being aired at the court in politically painful detail in the case of Environmental Defense v. Duke Energy Corp.

Arguments before the justices are scheduled for Wednesday and the government will be back where it started, siding against the power company to be consistent with its position in the lower courts.

Vickie Patton, a lawyer for Environmental Defense, says it is only the second time in 35 years the high court has agreed to review a case exclusively at the request of environmental groups and over the objections of the government.

The lawsuit against Duke, based in Charlotte, N.C., is one of more than a dozen such actions against utility companies during the Clinton administration.

The “New Source Review” 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.

When President Bush took office, his administration pursued the Clinton-era lawsuits but decided not to file any major new ones. When the Duke Energy case reached the 4th U.S. Circuit Court of Appeals, the utility company won.

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

Duke is highlighting the proposal from the Environmental Protection Agency in the energy company’s briefs to the Supreme Court.

How to measure emissions
The proposal would address a central issue in the Duke case — how power plant emissions are measured.

Instead of measuring the annual totals, as the government always has said the current rules call for, the administration now wants to measure pollution emissions by the hour. That change is fine with Duke and other companies whose plants have been upgraded to operate longer each day.

The October 2005 proposal sharply criticizes the current program that the government will defend in court on Wednesday. The EPA said that program has “impeded or resulted in the cancellation” of power plant projects that would have “improved the reliability, efficiency or safety of existing energy capacity.”

The “approach we have been taking leads to outcomes that have not advanced the central policy” of the program, the EPA proposal states. Duke’s lawyers, in court papers, quoted the EPA’s criticism of the current program, in effect throwing the government’s words back in its face.

When environmentalists asked the Supreme Court to hear the case, the administration cited the EPA proposal as a reason the court should not hear it.

“Far from indicating that this court’s review is necessary, the fact that EPA has proposed new regulations indicates that the agency believes it can address any difficulties caused by the court of appeal’s decision through rulemaking, and obviates any need for further review,” the government told the justices last March.

The court decided to take the case anyway. The administration now has switched positions again, filing papers strongly supporting the current program and opposing Duke, as it had previously.

In its main brief to the Supreme Court, Duke turns the EPA proposal against the government.

Duke’s court papers call the EPA’s enforcement position in the Supreme Court “particularly odd,” pointing out that the agency’s proposed rule is “consistent with Duke’s position.”

Lawyer Scott Segal, a spokesman for an electric power industry group, says the EPA proposal will make the arguments challenging for the government because “the administration has already admitted that the better public policy interpretation is one that is more flexible.”

Balancing act
Environmentalists are shaking their heads over how EPA’s proposal has played into the Duke suit.

“The administration has sabotaged its own court case,” said Frank O’Donnell, president of the nonprofit group Clean Air Watch.

Patton, the lawyer from Environmental Defense, said in an interview there is “no question the Bush administration wanted to avoid being in the United States Supreme Court in this clean air case.

“The Bush administration is treading the delicate line of enforcing the clean air laws at issue here while carefully reserving its right to radically weaken these same laws through new policies,” Patton added.

The EPA said in a statement the government is in the Supreme Court to enforce the Clean Air Act against Duke and at the same time is committed to overhauling the enforcement program “to ensure our nation’s air quality meets the most health protective standards.”

The EPA proposal and the administration’s brief asking the Supreme Court not to take the case both state that the government opposes the appeals court ruling favoring Duke. Former EPA lawyer John Walke calls those assertions “seriously misleading to the point of being deceptive — out of an attempt to avoid highlighting the harmful agenda shared by the administration and Duke.”

The narrow point the administration opposes in the appeals court ruling, Walke pointed out, is how much discretion the agency has to choose between an hourly test the industry wants and an annual test “that would protect public health.”

© 2013 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.


Discussion comments


Most active discussions

  1. votes comments
  2. votes comments
  3. votes comments
  4. votes comments