Accountability and the Law

NRDC recently won a case in federal court that held accountable a major utility that tried to snooker the American public. This decision upheld a core purpose of much of NRDC's litigation, vindicating, in turn, a core principle of our organization: Polluters should be held strictly to the limits imposed by law.

Before NRDC and the Southern Environmental Law Center sued, Duke Energy was ignoring a key Clean Air Act provision that protects the public against excess emissions of hazardous air pollutants, including mercury. Duke argued that the law's stringent limits -- requiring that emissions be no higher than the best of control technology allows -- did not apply because it received its construction permit -- and put the first shovel into the ground -- 10 days before a federal appeals court struck down the rule on which Duke was relying for its legal argument.

Duke knew or should have known all along that the rule on which it relied was invalid. The judges on the DC Circuit Court of Appeals indicated clearly a month before Duke received its permit that they would invalidate the rule. Duke's attorneys were in the courtroom and heard the same indications we did. So it would appear that Duke was trying to beat what it knew was  going to be an adverse ruling and in doing so completely disregarded the public interest and the purpose as well as the letter of the Clean Air Act.

Through this litigation, we've also been able to hold accountable the state of North Carolina and its environmental officials who have been particularly weak in their watchdog role over Duke. The state officials should never have granted the construction permit without first requiring the stringent limits required by the Clean Air Act. They too knew the DC appeals court was about to nullify the rule on which Duke relied.

Duke now will be subject to the strict pollution control requirements required by law. We do not yet know what that will mean in terms of emission reductions because that depends, in part, on how North Carolina responds to the Court's decision. But it is at least possible, and maybe likely, that Duke's permit will soon contain much, much tighter emissions limits on extremely hazardous pollutants.

There are maybe a dozen other power plants that started construction before the federal appeals court overturned the EPA action. All of them will now be subject to the tighter requirements. And we hope that after January 20th, the Obama administration will notify all those plants that it intends to tighten emission limits. So through our litigation, pollution reductions will be magnified.

Justice is being served. A federal judge has said that neither Duke nor North Carolina is immune from the Clean Air Act. This was the first decision from a federal judge after the appeals court ruling. We're confident it will not be the last.