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Public Radio's Environmental News Magazine (follow us on Google News)

Clean Air Battle Heads to Supreme Court

Air Date: Week of

(Photo: Phillip J. Redman, U.S. Geological Survey)

A highly complex Clean Air case before the U.S. Supreme Court could cost coal-fired power plants billions in new pollution control technology. It could also bring cleaner air. Living on Earth's Jeff Young travels from the high court to coal country to learn what's at stake in the battle over the Clean Air Act's New Source Review program.


CURWOOD: It’s Living on Earth. I’m Steve Curwood.

The U.S. Supreme Court is getting set to decide a complex Clean Air case that could raise costs for certain coal-fired power plants and reduce pollution for people who live downwind. The case dates back to the Clinton Administration, when the Environmental Protection Agency tried to enforce a tough section of the Clean Air Act called New Source Review. Power companies fought back and the Bush administration tried to relax the rules.

Living on Earth’s Jeff Young followed the twisting road this case has taken from coal country to the highest court in the land.


YOUNG: Just after the justices hear a case, the Supreme Court’s grand white marble plaza fills with reporters, cameramen and curious onlookers. Usually they gather around the attorneys who have just argued a case. This time the media gaggle also hears from a physician.

BALBUS: You may be asking the question why is a doctor is standing up here on the steps of the Supreme Court.

YOUNG: John Balbus is with the group Environmental Defense, which helped bring the case against Duke Energy. Balbus doesn’t want the highly technical details of this case to obscure what he says it’s really all about.

BALBUS: It’s really about reducing the burden of death and disease that this nation is experiencing now in part from these aging, highly polluting power plants.

YOUNG: Public health advocates estimate the soot from the 50 dirtiest coal-fired power plants kills anywhere from five thousand to nine thousand people a year. Power companies like Duke Energy say the government’s enforcement under New Source Review is not a fair or effective way to reduce that pollution. Duke Energy’s attorney in the case, Carter Phillips, says Duke made changes to its power plants in keeping with the law, at least, as they understood it.

(Photo: Phillip J. Redman, U.S. Geological Survey)

PHILLIPS: What we’re talking about is retroactively imposing potentially billions of dollars of liability for failure to comply with these rules which were, in our judgement, fully complied with. We did ask the regulators what to do and that’s why we’re saying you can’t come back 20 years later and say it’s a do over and you owe us billions. That’s just wrong.

YOUNG: The fight over coal-fired power plants has raged on like this ever since the Clinton Administration’s EPA went after power companies for making changes that increased emissions. Eric Shafer was head of enforcement for EPA back then. He says older power plants were "grandfathered in" under the clean air act because no one thought they’d still be around this many decades later.

In 2005, half of United States electric power was generated from coal.(Courtesy of National Institute of Standards and Technology)

SCHAEFFER: But there was a catch. If you take one of these old grandfathered units and you make a physical change and you do it in a way that significantly increases air pollution, then you gotta catch up with the law.

YOUNG: And Schaeffer says many old power plants were expanding.

SCHAEFFER: Now, if you take an old dirty power plant that’s operating 25% of the time and you bring it back to full time operation without any pollution controls, you get a lot more air pollution.

YOUNG: Schaeffer says that extra pollution is obvious if you measure the total annual emissions from a facility. And that’s what’s at the heart of the case before the Supreme Court: Whether the law says you should use the annual emissions as the basis for enforcement. Many of the power companies don’t think so. Scott Segal represents power companies in a group called the Electric Reliability Coordinating Council. Segal says emissions should be measured hourly, not at the annual rate.

SEGAL: If you adopt an annual test, it makes it much more difficult to undertake process improvements at your power plant or even to do simple maintenance projects and as soon as you do that you create all kinds of perverse incentives which reduce the ability to control for emissions, undermine workplace safety and undermine the reliability of the power plants. And as a result there’s a lot at stake for power plants.

YOUNG: Appeals Courts are split on the matter, with two siding with the power companies and others with the government. Many suits are still pending as power companies fight on. But some companies took a different route.


YOUNG: Officials with Dominion Power are eager to show off the new pollution controls at the Mount Storm, West Virginia, Power Station, not far from the Virginia line.
Operations Manager Bill Wood and Dominion Vice President Pam Faggert say the plumes from the stacks towering above us now carry far less sulfur dioxide.

Dominion’s Mt. Storm Power Station (Courtesy of Dominion)

FAGGERT: So by time it comes out of the stack over 95% of the SO2 is removed.

YOUNG: And then moving further over here to the right there’s a great big pile of black rock, that’s what makes it all happen, huh?

WOOD: Yes sir it is, that’s our coal storage pile. We use approximately 15 thousand tons a day.

YOUNG: Burning that coal powers a million homes but also made Mt. Storm one of the region’s dirtiest power plants. Now the new equipment has cut emissions by some 150 thousand tons a year. That, and improvements at other stations, will likely bring fewer asthma attacks and premature deaths in downwind communities. It’s a big job that takes big equipment. One piece, known as the SCR, works sort of like the catalytic converter on your car. Only this one is four-stories high.

FAGGERT: The size of the pollution control equipment is actually greater than the size of the boilers themselves.

YOUNG: And so the SCR is to target our nitrogen oxide emissions?


YOUNG: And then the next is?

FAGGERT: The electrostatic precipitators we call them ESP’s, that’s the device to remove the particulate matter.

YOUNG: Then last come the scrubbers, enormous house sized devices that mix limestone to the flue gas. Because sulfur dioxide is acidic, it binds to the basic limestone instead of going up the stacks. Much of this new equipment came as a result of New Source Review. Dominion decided to settle with EPA rather than fight. Faggert says it cost 1.2 billion dollars

YOUNG: That sounds like big money to me. Is that big money to you?

FAGGERT: Yes that’s very big money (laughs). There’s no question 1.2 billion dollars is a lot of money but I think Dominion felt it was better to spend money on air pollution control equipment instead of lawyers. We’re pretty proud, very clean coal fired power station. We think it’s a good investment. Good for the company, good for the environment. A good deal.

YOUNG: Downwind at Shenandoah National Park, visibility is already slightly better and, for the past two years the park has had no bad days for ground level ozone.


YOUNG: Clean Air groups say that’s evidence the law works when it’s enforced. But most industry leaders say they could clean the air with less cost and fewer trips to the courthouse if they didn’t have to deal with New Source Review. And President George Bush agrees with them. In this 2003 speech Bush called the law complex and outdated.

BUSH: We're replacing the old rules with simple, clear, easy to understand rules that will allow utility companies to make routine repairs without enormous costs and enormous disruptions to their plants. And the country is going to be better off for it. (Applause.)

YOUNG: The proposed changes so angered Eric Schaeffer at EPA that he quit in protest. Schaeffer says Bush’s attempt to change the rules undermined the government’s effort to enforce the law.

SCHAEFFER: A terrible situation for government lawyers to be in.

YOUNG: So, when the New Source Review case went to the Supreme Court, the government’s attorney found himself without the support of this own client, the Bush Administration. In fact, the government tried to persuade the high court not to take the case. But the justices took it anyway, persuaded by the briefs by the group Environmental Defense A strange situation that might explain why the government’s lawyer did not join the media gaggle on the court’s steps.


YOUNG: It fell to Environmental Defense’s attorney, Sean Donahue, to explain the government’s unusual position.

DONAHUE: Um, I think it’s a little awkward but that’s government. You’ve got to do some dancing sometimes.

YOUNG: Does it hurt your case, though?

DONAHUE: Um time will tell. Time will tell.

YOUNG: The Justices are expected to have a decision in about three months. For Living on Earth, I’m Jeff Young in Washington.



Dominion Virginia Power

Environmental Defense on the New Source Review U.S. Supreme Court Case

The Supreme Court docket for Environmental Defense V. Duke Energy Corporation

Duke Energy on the New Source Review U.S. Supreme Court Case

EPA's page on proposed changes to New Source Review

Cornell Law School’s Overview of New Source Review


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