Hight Court Hears Arguments in Air Pollution Case

The Supreme Court hears arguments in a case that tests whether the Clean Air Act requires power plants and factories to install anti-pollution devices when they modernize their facilities. Environmentalists contend that an adverse ruling would open a major loophole in the Clean Air Act.

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The Supreme Court today hears arguments in a case that tests the Clean Air Act. The question is whether that act requires power plants and factories to install anti-pollution devices when they modernize their facilities. Environmentalists contend that an adverse ruling would open a major loophole in the Clean Air Act, allowing coal-fired plants to make an end-run around the law.

Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG: When Congress enacted the Clean Air Act in 1977, it put into place a compromise so that existing power plants would not be hit with huge anti-pollution costs. It grandfathered those plants out of the act's requirements that new and expensive anti-pollution equipment be installed.

The theory was that these plants would become obsolete in 10 or 15 years and would be supplanted by nuclear plants, or at least new plants that would be required to install antipollution devices.

The Environmental Protection Agency, in writing regulations to carry out the law, sought to prevent an industry end-run by saying that if a company made major modifications to a plant that resulted in a net increase in emissions, the plant would have to install anti-pollution equipment.

In the mid-1980s, Duke Energy decided to modernize eight of its plants in North and South Carolina. Some were so old that the company had actually shut them down. To get them up and running again, Duke said it had to do major but routine maintenance. Carter Phillips represents Duke.

Mr. CARTER PHILLIPS (Legal Counsel, Duke Energy): What you're talking about in a lot of these cases is just - you're putting in new tubes. And it does cost a fair amount of money because these are four, five-storey high buildings and the tubes are not inexpensive.

TOTENBERG: But environmental groups said this was a major modernization; that Duke Energy had spent more to modernize than to build the plants in the first place and that Duke Energy thus was required to install anti-pollution equipment. Vickie Patton is a senior attorney with the group Environmental Defense.

Ms. VICKIE PATTON (Senior Attorney, Environmental Defense): It's like taking an old car and putting a new engine in it and allowing it to run much further and much harder, but not also investing in modern tailpipe controls.

TOTENBERG: The crux of the issue before the Supreme Court today is whether these refurbished plants in fact have increased the amount of pollution they emit. More precisely, the question is: What does it mean to increase pollution?

Since 1980, the EPA has repeatedly said it means an increase in actual pollution. And the way the agency measures actual pollution is to measure total annual output of pollutants that have severe health consequences.

But Duke Energy maintains that under the traditional interpretation of the regulations, pollution increase is measured by the hourly rate of pollution. And as long as the hourly rate doesn't change, then it doesn't matter if the plant runs for many more hours. In Duke's case, environmentalists claim that the hourly rate would mean an additional five tons of pollution in the Carolinas each year.

Duke's lawyer, Mr. Phillips, contends that for 20 years the EPA did not tell industry that it interpreted the phrase increase in pollution to mean an actual annual increase as opposed to an hourly increase.

Mr. PHILLIPS: This is a total gotcha. That is, we don't tell you what the right answer is until 20 years later.

TOTENBERG: What is undoubtedly true, according to experts, is that EPA did not aggressively enforce its regulation for the first decade and a half of their existence. Only in the 1990s did the EPA stepped up enforcement, with many companies agreeing to add antipollution devices, and others like Duke Energy resisting.

Finally at the end of the Clinton administration, the EPA filed suit in a variety of cases, which went forward under the new Bush administration. But when the EPA lost in the Duke Energy case in the 4th Circuit Court of Appeals in Richmond, the Bush administration not only failed to appeal, it urged the Supreme Court not to accept the case for review - the first time the government had done in an environmental case in 30 years.

Now that the high court has decided to review the case, the first question it will decide is whether the 4th Circuit should have even gotten into this case at all since questions involving the validity of Clean Air Act regulations are reserved by law for the U.S. Court of Appeals here in Washington. And that court has ruled the opposite way in a similar case also involving Duke Energy.

Meanwhile, although the Bush administration is defending the EPA's interpretation of its regulations, it has proposed changing those regulations in the future so that they would be pretty much what industry wants.

Nina Totenberg, NPR News, Washington.

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