Cinergy, now Duke Energy, was trying to claim that as long as its plants’ hourly emission rate did not increase, they could make unlimited “modifications” to the plants. So, in theory, if capacity got doubled so a plant was operating 24 hours a day from 12, the hourly rate would remain the same, but pollution would double. Well, isn’t that a “new source” then? Apparently, Cinergy did not think so, and after at least 6 years of wrangling, this thing is going to be decided by the Supreme Court this fall. So, once again, the crack team of Roberts, et al. will decide whether we breathe or not, policy by judicial fiat?
A federal court has ruled that a big U.S. utility must install costly pollution-reduction equipment at its aging coal-powered electric plants if it expands them, handing a victory to the U.S. government in a case that could shape an upcoming Supreme Court ruling.
The three-member 7th Circuit Court of Appeals in Chicago on Thursday ruled that Cinergy must install emission curbs at its coal-powered plants in the Midwest if it expands them to prolong their operating lives.
The Environmental Protection Agency had sued the utility to force it to apply for an expansion permit, which would trigger emission-reduction measures.
In a bevy of cases, U.S. utilities are testing how far they can go to expand aging plants without triggering a section of the Clean Air Act known as “New Source Review.”