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Tuesday, September 19, 2006

Ind. Gov't. - State of Indiana sides with Duke in case against EPA

Platts News Service reported yesterday:

Duke Energy, 10 states and two electric utility groups have filed briefs with the US Supreme Court arguing that the US Environmental Protection Agency wrongfully reinterpreted the Clean Air Act when it sued Duke for upgrading coal-fired units without applying new-source review requirements.

The court is set to hear oral argument in Environmental Defense versus Duke Energy on November 1.

Duke Energy told the justices in its brief filed Friday that the Charlotte, North Carolina-based utility began 29 renovation projects at eight power plants in 1988 with the knowledge of the federal agency and state regulators charged with regulating the plants.

EPA and Environmental Defense's arguments "do not withstand common-sense scrutiny," Duke argued. "Under their view, the electric utility industry has engaged in the decades-long, universal noncompliance--in plain view of and in complicity with state and federal regulators.

"The far more sensible conclusion is that EPA changed its interpretation of the statute and rules in this enforcement initiative--adopting an interpretation it now has disavowed as bad policy."

The case stems from lawsuits filed by EPA in 1999 against several electric utilities for upgrading their aging coal-fired power plants without obtaining permits or installing pollution control equipment as required under NSR. Duke Energy won its case in a federal district court in North Carolina and on appeal by EPA before the US 4th District Court of Appeals in Richmond. Environmental Defense appealed the circuit court decision to the Supreme Court.

The case turned on how plant emissions are measured--on an hourly basis as argued by Duke or an annual basis as favored by EPA--to determine whether the unit had undergone a modification that triggers NSR requirements.

The states filing in support of Duke Energy told the high court that in filing the NSR lawsuits, EPA "flatly contradicts its own earlier interpretations and guidance to states, violates the fundamental principles of federalism" under the Clean Air Act, and "risks needlessly overwhelming the state regulators" who must enforce the law's requirements.

The states filing the brief were Alabama, Alaska, Colorado, Indiana, Kansas, Nebraska, South Carolina, South Dakota, Virginia and Wyoming along with West Virginia's Department of Environmental Protection.

Here is more on the case, Environmental Defense, et al. v. Duke Energy Corp. Here is a link for the briefs.

Recall that the 7th Circuit also ruled on a similar case, via a panel headed by Judge Posner, United States v. Cinergy Corp., No 06-1224 (7th Cir. August 17, 2006), and ruled the other way, affirming a ruling by SD Indiana's Judge Larry J. McKinney.

See this ILB entry from August 18th and this one from August 17th.

Posted by Marcia Oddi on September 19, 2006 10:15 AM
Posted to Environment | Indiana Government