Government Drops Duke Energy Lawsuit

By Bruce Henderson, The Charlotte Observer, N.C.

Nov. 30–The Bush administration has dropped the government’s air-pollution lawsuit against Duke Energy, deciding not to seek Supreme Court review of lower court rulings in the power company’s favor.

Environmental groups, however, said they will continue to press the case. Filed late in the Clinton presidency, it claims that Duke illegally upgraded eight coal-fired power plants without adding new pollution controls.

Duke calls the work routine maintenance that didn’t require new pollution controls.

“We always felt we had a strong case,” said spokesman Randy Wheeless. “We won at every level, and I think the government’s deciding not to pursue it was a reflection of the strength of our case.”

Other utilities have settled similar lawsuits, involving the Clean Air Act’s “new source review” provisions, by agreeing to spend hundreds of millions of dollars in pollution controls.

The Environmental Protection Agency, in a statement, said Solicitor General Paul Clement had decided the case lacked the “compelling reasons” needed to ask for Supreme Court review. Monday was the deadline for seeking high-court review.

A key ruling by a federal judge in Greensboro two years ago gutted the government’s case against Duke.

The judge ruled that an increase in hourly emissions was the proper test for deciding whether power-plant upgrades trigger new pollution controls. The government and environmental groups had argued that overall emission increases, such as from longer operating hours, was the correct standard.

Following that ruling, the government accepted a dismissal in Duke’s favor and appealed to the 4th U.S. Circuit Court of Appeals in Richmond. In June, the appeals court also sided with Duke.

EPA cited — but has also criticized, environmental groups say — the 4th Circuit ruling last month in proposing that the hourly-emissions standard be applied nationwide.

Despite the administration dropping the Duke case, the Southern Environmental Law Center said it will still ask the Supreme Court to review the appeals court ruling. The center represents Environmental Defense, the N.C. Public Interest Research Group and the state Sierra Club.

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