- The Washington Times - Sunday, October 29, 2006

When the Bush administration lost an important air pollution case before an appeals court last year, it did an interesting about-face and sided with the electric power company that won.

Unfortunately for the administration, environmental groups persuaded the Supreme Court to take up the case over the objections of the government.

Now the administration’s switch is being aired at the court in politically painful detail in the case of Environmental Defense v. Duke Energy Corp.

Arguments before the justices are scheduled for Wednesday, and the government will be back where it started, siding against the power company to be consistent with its position in the lower courts.

Vickie Patton, an attorney for Environmental Defense, said it is the second time in 35 years that the high court has agreed to review a case exclusively at the request of environmental groups and over the objections of the government.

The lawsuit against Duke, based in Charlotte, N.C., is one of more than a dozen such actions against utility companies during the Clinton administration.

The “New Source Review” enforcement program is aimed at reducing power plant emissions of nitrogen oxide and sulfur dioxide that contribute to smog and acid rain. Retrofitting aging coal-fired plants with the latest pollution-control equipment is costing billions of dollars.

When President Bush took office, his administration pursued the Clinton-era lawsuits but decided not to file any major new ones. When the Duke Energy case reached the 4th U.S. Circuit Court of Appeals, the utility company won.

A few months after the Duke court victory, the Bush administration proposed an industry-friendly rule that is along the lines of what Duke and other utilities have wanted.

Duke is highlighting the proposal from the Environmental Protection Agency in the energy company’s briefs to the Supreme Court.

The proposal would address a central issue in the Duke case — how power plant emissions are measured.

Instead of measuring the annual totals, as the government has said the current rules call for, the administration now wants to measure pollution emissions by the hour. That change is fine with Duke and other companies whose plants have been upgraded to operate longer each day.

The October 2005 proposal sharply criticizes the current program that the government will defend in court on Wednesday. The EPA said that program has “impeded or resulted in the cancellation” of power plant projects that would have “improved the reliability, efficiency or safety of existing energy capacity.”

The “approach we have been taking leads to outcomes that have not advanced the central policy” of the program, the EPA proposal states. Duke’s attorneys, in court papers, quoted the EPA’s criticism of the current program, in effect throwing the government’s words back in its face.

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