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High court ruling could sway Alabama pollution case

By Ben Evans
Associated Press Writer

WASHINGTON — A Supreme Court ruling Monday could help decide a lower-court fight over pollution from four Alabama Power Co. plants, but there is disagreement over how it might affect the utility’s case.

In a unanimous decision with industrywide implications, the Supreme Court ruled against Duke Energy Corp. in interpreting how emissions increases should be measured when utilities upgrade their power plants.

Utilities, including Alabama Power, had argued for an approach allowing them to expand capacity annually without triggering requirements for expensive new pollution controls. The state of Alabama filed a brief siding with the utilities, saying among other things that consumers would benefit from reduced power bills.

Responding to the ruling Monday, environmental groups said the decision would trickle down into pending cases elsewhere, including one in which the Environmental Protection Agency sued Alabama Power over plants in Shelby, Walker, Greene and Mobile counties.

Environmentalists said it would help in the suit against Alabama Power, but the utility said any impact would be minimal.

‘Major tipping point’

“It is very significant for the Alabama Power case,” said Blan Holman, an attorney with the Southern Environmental Law Center, which has joined lawsuits against Duke Energy and Alabama Power. “This is a major tipping point in the campaign to clean up the nation’s dirty coal-fired power plants.”

The lawsuits involve a Clean Air Act program called New Source Review, which requires utilities to install scrubbers and other pollution controls when upgrading their plants.

In the Alabama case, originally filed in 1999, the EPA argued that Alabama Power had violated the law by improving plants without installing the required equipment.

Both sides agreed that the two key questions in the case were how emissions increases would be measured and what kinds of modifications would trigger the law. The Duke Energy case addressed the first question. In their ruling Monday, the justices rejected the industry’s preferred approach in which emissions would be measured hourly.

Pollution totals

Under such a system, utilities wouldn’t have to install pollution controls as long as their hourly emissions didn’t rise, even if annual pollution totals increased as modernized plants operated longer hours.

The second question — on when improvements could be classified as routine maintenance instead of major modifications triggering New Source Review — remains unresolved.

Alabama Power spokesman Michael Sznajderman said the company has always believed that its case rests on the second issue and predicted that the Supreme Court ruling would have a marginal impact on its case.

“The definitive issue in our case is the routine maintenance issue,” he said. “We are prepared to defend that position.”

Alabama Attorney General Troy King, who had the backing of Republican Gov. Bob Riley in joining the Duke Energy case, expressed disappointment in the ruling but said it was “narrowly crafted” enough to allow for future consideration of some of the state’s arguments.

A federal judge dismissed the EPA’s lawsuit against Alabama Power last year, ruling that the federal government had inconsistently interpreted the law. The government appealed, but the 11th Circuit Court of Appeals put the case on hold pending the Supreme Court decision in the Duke Energy litigation.

Alabama Power’s parent company, Atlanta-based Southern Co., had filed a brief supporting Duke Energy in the case.

Copyright 2005 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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