Duke Energy loses catfight with environmentalists

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Photo credit: Kevin Steele.
  • Photo credit: Kevin Steele.

Several environmental organizations — Southern Alliance for Clean Energy, Environmental Defense Fund, National Parks Conversation Association, Natural Resources Defense Council and the Sierra Club — sued Duke Energy in 2008 over the company's Cliffside coal plant's addition of a sixth "unit," an 800-megawatt expansion. The suit charged that the company skipped some steps in the plant's approval process and that it should have to comply with the Clean Air Act and utilize Maximum Achievable Control Technology (MACT).

In case you forgot: Cliffside is located about 50 miles west, aka upwind, of Charlotte on the edge of Cleveland and Rutherford Counties.

The groups wanted the company to slow down, conduct some deep analysis and prove its claims that the new unit will be a minor source of pollution. Further, they argued that the new coal-fired units would be a major source of emissions and that their case should stand, not be dismissed as the company requested.

According to last Thursday's federal appellate court summary ruling (sorry, should have said "spoiler alert"):

With their federal suit, Plaintiffs sought to have the district court: declare Duke Energy's construction of Unit 6 without a MACT determination illegal under the Clean Air Act; enjoin Duke Energy from further construction of Unit 6 until it complies with the Clean Air Act and any other applicable regulations; and assess civil penalties against Duke Energy for violating the Clean Air Act.

In August 2008, Plaintiffs moved for summary judgment on the basis that Duke Energy was violating the Clean Air Act by constructing a new major source of hazardous air pollution without first obtaining a determination from the State of North Carolina that the pollution source, Unit 6, was designed to control its hazardous emissions to the maximum extent possible. Duke Energy, in turn, moved to dismiss the complaint, arguing that Section 112(g) of the Clean Air Act, under which Plaintiffs brought their suit, did not apply and that Plaintiffs' complaint constituted an improper attack on the state permitting process.

Meow.

Welp, the district court ruled that Duke Energy had to comply with the Clean Air Act and go through the MACT evaluation. In other words, the court was ready to let the the state take things from there.

And it did, determining that the new unit needed tighter regulations.

From the ruling:

As a result of the administrative proceedings that the district court ordered, new limits were placed on Unit 6's hazardous emissions. If those limits are exceeded, Unit 6 will be subject to MACT requirements. Further, additional emissions monitoring, testing, and recordkeeping were required. The district court's December 2008 ruling was, therefore, neither a "merely procedural" victory nor "trivial," as Duke Energy contends.

But that's not all. The environmental groups asked the court to make Duke Energy pay more than $800,000 in legal fees, claiming that they'd won in a sense since the company was now going through the proper channels to ensure its new unit is only a mild polluter, not a major one.

The court agreed, though they only awarded the environmental groups a little less than half a million bucks.

Duke appealed then lost again when, last Thursday, a federal judge decided the company needs to pay up. (Read the judge's ruling here, which includes this statement: "Under the Clean Air Act's citizen suits provision, a court may award attorneys' fees 'whenever the court determines such award is appropriate.'")

So you know, environmental organizations, which are usually also nonprofits, often sue on behalf of the public in Clean Air Act cases like these; since we're all air breathers, our health can be negatively impacted by air pollution, and, well, someone's gotta stand up for clean oxygen. And, let's face it, the average citizen isn't paying any attention.

The local chapter of the Sierra Club exalted the ruling on their blog, saying — and I'm paraphrasing big time — that the district court's ruling meant Duke Energy should have gone through the proper channels to begin with and, had they, there would be no need to squabble about attorney's fees.

In other news, the mainstream media hasn't had much, if anything, to say about the issue ... which is odd since Duke Energy is a huge employer in this area and a publicly traded company.

I'm just sayin' ...

Welp, the district court ruled that Duke Energy had to comply with the Clean Air Act and go through the MACT evaluation. In other words, the court was ready to let the the state take things from there.

And it did, determining that the new unit needed tighter regulations.

From the ruling:

As a result of the administrative proceedings that the district court ordered, new limits were placed on Unit 6's hazardous emissions. If those limits are exceeded, Unit 6 will be subject to MACT requirements. Further, additional emissions monitoring, testing, and recordkeeping were required. The district court's December 2008 ruling was, therefore, neither a "merely procedural" victory nor "trivial," as Duke Energy contends.

But that's not all. The environmental groups asked the court to make Duke Energy pay more than $800,000 in legal fees, claiming that they'd won in a sense since the company was now going through the proper channels to ensure its new unit is only a mild polluter, not a major one.

The court agreed, though they only awarded the environmental groups a little less than half a million bucks.

Duke appealed then lost again when, last Thursday, a federal judge decided the company needs to pay up. (Read the judge's ruling here, which includes this statement: "Under the Clean Air Act's citizen suits provision, a court may award attorneys' fees 'whenever the court determines such award is appropriate.'")

So you know, environmental organizations, which are usually also nonprofits, often sue on behalf of the public in Clean Air Act cases like these; since we're all air breathers, our health can be negatively impacted by air pollution, and, well, someone's gotta stand up for clean oxygen. And, let's face it, the average citizen isn't paying any attention.

The local chapter of the Sierra Club exalted the ruling on their blog, saying — and I'm paraphrasing big time — that the district court's ruling meant Duke Energy should have gone through the proper channels to begin with and, had they, there would be no need to squabble about attorney's fees.

In other news, the mainstream media hasn't had much, if anything, to say about the issue ... which is odd since Duke Energy is a huge employer in this area and a publicly traded company.

I'm just sayin' ...

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