Supreme Court Rules Unanimously Against Power Plant Polluters, Sets Up Major Challenge to Bush Administration Emission Policy

New Source Review Case Upholds Key Tenet of Clean Air Act
WASHINGTON (April 2, 2007) -- In the second of two major environmental decisions handed down today, the Supreme Court ruled unanimously against electric utility companies’ long running and dangerous efforts to escape key enforcements of the Clean Air Act. The verdict is a resounding victory for the American public, according to legal experts at the Natural Resources Defense Council (NRDC).
“This is a major victory in and of itself. But the decision is going to reverberate throughout the electric utility industry and have a major impact on the air quality in dozens of states,” said NRDC attorney John Walke. “It also puts the final nail in the coffin of the Bush administration’s ceaseless six-year effort to monkey-wrench the federal laws requiring power companies to bring half-century-old plants up to safe environmental standards.”
At issue in the case are two decades’ worth of emissions violations by Duke Energy and other companies that have resulted in millions of tons of illegal smog and soot – pollution linked to asthma, heart attacks, and other serious ailments. It is part of a much wider effort in the industry to skirt a provision known as new source review (NSR), under which old generating facilities undergoing major changes must also be brought up to current emissions standards.
The Bush administration has fought against the NSR program from its earliest days, and in October, 2005 went so far as to roll back enforcement against companies that were – and still are – openly violating the law. There is currently an EPA rulemaking underway that would codify the very reading of the law that was rejected by the court today.
“The administration has made it a policy to let companies that are breaking the law off the hook for millions of tons of dangerous emissions. This ruling eliminates any last shred of legal justification for coddling polluting lawbreakers,” Walke said. “If they insist on going forward with the rulemaking, you can expect Congress and the public health community to put up a major fight.”
For more information on the pending EPA rulemaking, including leaked EPA enforcement office documents criticizing the proposal, see
The case, Environmental Defense v. Duke Energy Corp., now resumes in the lower courts.