Justices Challenge EPA's Arguments in Clean Air Act Case

By Charles Lane
Washington Post Staff Writer
Thursday, November 2, 2006

Supreme Court justices took a skeptical view of an Environmental Protection Agency crackdown on air pollution from electric power plants yesterday as the court heard oral arguments in a major case on the authority of the federal government to punish violations of the Clean Air Act.

At issue is a wave of lawsuits begun by the EPA during the last two years of the Clinton administration in which the agency sought to force utilities to equip their refurbished older plants with state-of-the-art pollution control equipment. The EPA said it was enforcing its long-established view of the Clean Air Act's requirements. But companies objected, saying the EPA was unfairly imposing a new and stricter interpretation of ambiguous federal regulations.

At yesterday's argument, most of the justices who spoke up seemed to agree with industry's view.

"What I'm concerned about is that companies can get whipsawed," said Justice Antonin Scalia.

When Sean H. Donahue, a lawyer for Environmental Defense, a private organization defending the EPA enforcement actions, told the court that the agency's regulations were "clear on their face," Chief Justice John G. Roberts Jr. interjected, "That's an audacious statement."

At issue in the case, Environmental Defense v. Duke Energy , No. 05-848, is how to measure utilities' compliance with the Clean Air Act's "new source review" program, which governs emissions from plants that have been modernized or expanded.

Environmental Defense says that about 17,000 facilities are covered by the rules, and it cites studies that show 20,000 premature deaths per year traceable to pollution from coal-fired plants.

It says the EPA properly insisted that Duke Energy get a special permit and install new pollution-control equipment before reopening several coal-fired plants it had started renovating in 1988, because the plants' total emissions dramatically increased when they were brought back online.

But Duke, a North Carolina-based utility, countered that the proper standard was not the total amount of pollution its plants emitted, but the rate at which they emitted it. By that measure, the company said, its renovations had not changed the plants' capacity for pollution.

In June 2005, the U.S. Court of Appeals for the 4th Circuit, based in Richmond, ruled in Duke Energy's favor.

By that time, the Bush administration had promised to change EPA enforcement policy, announcing in 2002 that it would bring no new cases against utilities.

But the EPA continued cases that were pending when the administration took office in 2001, so the Bush EPA and Environmental Defense were on the same side in the 4th Circuit.

After that, the administration proposed new clean air regulations that echo the 4th Circuit's decision and would apply it nationwide. It then asked the Supreme Court not to accept Environmental Defense's request to intervene in the case.

The court's decision to take the case over the administration's objection was a surprise. Since the adoption of modern environmental legislation in 1970, the court had agreed to hear just two previous cases in which an environmental group was the petitioner.

Yesterday, the Bush administration was back on Environmental Defense's side of the case, defending the EPA's authority to press the last few cases against Duke and others.

Justice Ruth Bader Ginsburg asked Thomas G. Hungar, a deputy solicitor general, about the impact of the administration's shifting positions. "Since the government is now taking the position that another Duke could do just what was done here and there's an enforcement action pending, would you, if you prevailed in that enforcement action, nonetheless enforce, though it goes against the current government policy?"

"Your Honor, the 2005 proposal that you're referring to is only a proposal. . . . It has not been adopted," Hungar replied. "So the rules as they exist today are the same as the ones we're talking about, although there was a modification in 2002."

A decision in the case is expected by July.

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