The Court and Clean Air

The Supreme Court needs to send a strong message to polluters, lower courts and the Bush administration.

THE SUPREME COURT heard oral arguments Wednesday in an important environmental case -- important both for clean air and for preserving the proper order for resolving disputes over regulatory questions. The case, Environmental Defense v. Duke Energy Corp. , involves the rules governing when coal-fired energy plants must be upgraded with modern, pollution-fighting equipment. It presents two distinct questions. The first is what counts as an "increase" in pollution; the second is which court gets to decide. If the Supreme Court sides with Duke Energy -- as several justices seemed inclined to do -- it will do a great deal of damage.

The Clean Air Act requires utilities to install pollution-control equipment when they modernize plants in a fashion that increases emissions. Many companies long flouted this rule -- and regulators left it unenforced until the Clinton administration. Duke Energy, which runs several power plants in the Carolinas, was one of them. It contends that its considerable upgrades to its facilities don't count as increasing pollution because they don't jack up their hourly emissions but allow the plants merely to run more hours in a day. The company contends that the Environmental Protection Agency changed the rules on it -- suddenly evaluating increases on the basis of actual emissions per year instead of, as it does under a different provision of law, hourly polluting capacity. And it persuaded the U.S. Court of Appeals for the 4th Circuit to block enforcement against it.

The argument is wrong, and Duke Energy made it to the wrong court. The EPA's rules have not been a model of consistency, but its use of actual emissions to measure increases is neither unreasonable nor new; rather, it's a longstanding, common-sense reading. What's more, Congress gave exclusive jurisdiction over challenges to clean air rules to the U.S. Court of Appeals for the District of Columbia Circuit, not the 4th Circuit, and the D.C. Circuit has ruled unambiguously that increasing emissions doesn't mean increasing their hourly rate but their actual total. Congress gives the D.C. Circuit such jurisdiction over all kinds of complex regulatory issues for a good reason: Its judges are experts in administrative law, and routing challenges through them creates uniformity and predictability. To allow other courts to jump in like this would be destabilizing.

What's more, it would eviscerate the EPA's enforcement initiative -- one that has brought considerably cleaner air and, with numerous cases pending, stands to do more. Companies that violated the law for many years would suddenly be off the hook. And such a ruling would give the administration a green light to change the regulatory definition of "increase" from one based on actual emissions to one more congenial to polluters -- a step the EPA has been planning even as it continued its Clinton-era enforcement actions. The court should rule that companies need to obey clean air rules and can't do an end run around the D.C. Circuit when they want to challenge them.