Supreme Court On Clean Air Act Case

The Supreme Court last week agreed to review a case that is likely to have major repercussions on national air pollution policy.

The suit involves part of the Clean Air Act called new source review. This provision requires companies, including chemical manufacturers, to install up-to-date pollution control equipment when they upgrade their plants.

At the heart of the case before the high court is what constitutes an increase in emissions that will trigger a new source review. Three environmental groups, which brought the case to the Supreme Court, argue that it should be defined as a rise in a facility's actual annual emissions. Power company Duke Energy, backed by a federal appeals court, says it should be defined as a boost in a plant's hourly emission rate (C&EN, June 20, 2005, page 22).

Environmental Defense and two North Carolina environmental groups asked the high court to review a 2005 ruling in favor of Duke Energy by the U.S. Court of Appeals for the 4th Circuit. The Clinton Administration brought the case against Duke Energy in 2000, arguing that the utility was subject to a new source review because it increased its annual emissions through upgrades that extended the number of hours its units could operate each day.

Although the Bush Administration continued the suit against Duke Energy, it abandoned the case after the appeals court ruling. In October 2005, EPA initiated a policy change on new source review for electricity generators. It proposed that a utility could continue operating without modernizing pollution controls if technology upgrades do not change the plant's maximum hourly emissions, despite any increase in annual emissions (C&EN, Oct. 24, 2005, page 34).

The case is expected to be decided by the Surpreme Court in 2007.