This fall, the Charlottesville-based Southern Environmental Law Center will argue its first case before the U.S. Supreme Court. In representing a consortium of North Carolina-based environmental groups, SELC will argue that Duke Energy violated the Clean Air Act by renovating old coal-fired power plants without installing required modern pollution controls.
The case involves eight plants in the Carolinas, but the outcome could impact coal-fired plants across the country, and goes to the very essence of the Clean Air Act. SELC staff attorney Caleb Jaffe says, “It’s the kind of case that has the potential to be a landmark and end up in law school textbooks.”
At issue is a loophole in the act dating back to 1977 in which Congress “grandfathered” old coal-fired plants, exempting them from the requirement that utilities install modern pollution controls whenever they make plant modifications that result in increased pollution. At the time, Congress assumed that the owners of the grandfathered plants would retire them in short order, or completely renovate them to keep them in line with modern pollution standards.
But everyone knows what happens when you assume—and so, under the guise of “routine maintenance” (while also claiming other statutory exemptions), Duke Energy breathed new life into old plants that had been offline for years, expending tens of millions of dollars on upgrades that brought these dinosaurs back from the brink of extinction and extended their lives. The upgrades have resulted in hundreds of tons of increased pollution per year.
This Supreme Court case is only the third in the last 35 years to be brought solely by a citizen environmental group. Typically, the federal Environmental Protection Agency or a state’s attorney general would bring such an environmental petition. But the EPA, which filed the suit against Duke Energy during the Clinton Administration, backed out of the case after losing at the district and appellate court levels (and after the Bush Administration encouraged the agency to reconsider its Clean Air Act enforcement actions).
That left the SELC to carry the torch. Jaffe says the case is a “perfect example of how the SELC model is supposed to work: to act for citizen plaintiffs and be the voice for the grassroots environmental community.”