For the last six years, the Environmental Protection Agency has been doing battle with a formidable foe: itself. While one arm of the agency has pursued lawsuits against power companies that evade the Clean Air Act's pollution-cutting mandates, another has tried to change the mandates so that they no longer apply.

In the coming months, this strange battle will reach a climax. The Supreme Court will hear a case prompted by an EPA lawsuit against an allegedly rule-breaking power company; at the same time, the EPA will try to rewrite those very rules so that the power company isn't breaking them. If this sounds confusing, that's because it is — but the outcome will profoundly influence the state of our skies and health.

On November 1st, environmental groups Environmental Defense, the Sierra Club, and the North Carolina Public Interest Research Group, will ask the Supreme Court to overturn a lower-court decision on the definition of pollution increases. The EPA, though not named as a petitioner, will argue beside them. The case, Environmental Defense, et al. v. Duke Energy Corporation, grew out of the EPA's attempt to make Duke Energy, a North Carolina-based power company, clean up eight smog-belching, coal-fired power plants in the Carolinas.

At issue is a subsection of the Clean Air Act known as New Source Review. Under New Source Review, power plants constructed before the Act was passed in 1970 had to install pollution controls if they were upgraded, and all power plants — new and old alike — had to install controls if they emitted more pollution.

Under Ronald Reagan and George Bush, Sr., the EPA often failed to enforce New Source Review, allowing power companies who increased production to pollute more without cleaning up. According to an EPA-commissioned study, these plants are prime contributors to more than 24,000 deaths each year, not to mention hundreds of thousands of respiratory ailments, asthma cases, heart attacks and hospital visits.

Under President Clinton, the EPA opened investigations into more than 100 old coal-fired plants, among them Duke Energy's. However, though the Clinton-era lawsuits have continued under George W. Bush, the EPA — at the recommendation of Vice President Cheney's industry-led Energy Task Force — tried with the Clear Skies Initiative to eliminate New Source Review, and then to re-write it so the power plant upgrades wouldn't require new pollution controls.

"Companies are running old, really dirty power plants at tremendous profit, and they are defending that profit every way they can," said John Coequyt, a Greenpeace energy specialist.

Power companies like Duke have responded to New Source Review enforcement by arguing that pollution controls are too expensive, and asked that pollution be measured in hourly rates averaged from the course of a year, rather than in total volume. Environmentalists are critical.

"New Source Review applies when there is an increase in pollution. But what does 'increase' mean?" said Frank O'Donnell, president of Clean Air Watch. "Common sense says that if you increase the volume of pollution, that's an increase. People breathe pollution, not the hourly rate."

The utilities' arguments met with little courtroom success until last year, when the 4th Circuit Court sided with Duke Energy. But while the EPA will battle Duke in the Supreme Court in November, it's simultaneously trying to write Duke's position into law. On August 18th, the EPA formally proposed that New Source Review be modified to tabulate pollution using hourly averages, and to calculate increases against a baseline rate which assumed that plants operated around-the-clock on every day of the year.

Posted on Sep 5, 2006 at 1:33 PM
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