NEWS

Groups file second legal challenge over Duke Cliffside project

03/28/2008

Daniel Cusick, E&ENews PM reporter

Environmentalists today filed the second in what is expected to be a series of legal challenges to a Duke Energy coal-fired power project proposed for western North Carolina.

The Southern Environmental Law Center filed a petition before the North Carolina Administrative Court on behalf of four groups seeking judicial review of permits issued by the North Carolina Division of Air Quality to Charlotte, N.C.-based Duke for its Cliffside Steam Station expansion.

Petitioners are the Environmental Defense Fund, Southern Alliance for Clean Energy, National Parks Conservation Association and Sierra Club. Their attorney, Gudrun Thompson, accused regulators of abrogating their responsibility to protect the public and the environment from air pollution.

"In issuing this permit, [the Division of Air Quality] failed to carry out this duty," Thompson said in a statement. "In fact, DAQ seems to think its job is to help greenlight this project for Duke."

Duke won state approval in January to build a new 800-megawatt coal-fired unit at its Cliffside plant in exchange for shutting down 1,000 megawatts of older, highly polluting coal units across its system. The first of those retirements is to be at Cliffside, where four older units are scheduled for shutdown in 2012.

Duke officials have said that Cliffside’s new generation units will be among the cleanest in the country and that continued use of coal will help to diversify the utility’s fuel mix, allowing for "an economical, reliable and diverse power plant fleet that will help our economy grow."

But environmental groups, in keeping with recent efforts to derail or delay coal-fired power projects nationwide, remain adamantly opposed to Cliffside.

Last week’s lawsuit

Today’s lawsuit was the second to be filed in a week, following last Wednesday’s appeal by the N.C. Waste Awareness & Reduction Network and Appalachian Voices.

The SELC-led petitioners argue that the Cliffside expansion air permit violates the Clean Air Act on three fronts, most notably because it fails to impose controls on carbon dioxide, the world’s most abundant greenhouse gas.

While CO2 has not traditionally been regulated under federal statutes, environmental groups have recently pressed for the gas from new coal-fired plants to be regulated, citing the Supreme Court’s 2007 decision calling on U.S. EPA to consider CO2 a pollutant when it is emitted from motor vehicles.

So far, however, that argument has failed to win over judges in a number of challenges brought at the state level and before a U.S. EPA appeals board in Washington.

The North Carolina permit does incorporate Duke’s greenhouse gas reduction plan, but plaintiffs said the plan, as written, "is riddled with loopholes that could allow the company to never reduce CO2 emissions."

Environmentalists also argue that North Carolina did not require Duke to install maximum pollution control technology for mercury or other hazardous air pollutants associated with coal combustion.

Last, petitioners argue that North Carolina regulators allowed Duke to avoid periodic reviews of sulfur dioxide and nitrogen oxide emissions from Cliffside’s existing units and that Duke was allowed to forgo an analysis of how its emissions would affect Great Smoky Mountains National Park and other natural areas in western North Carolina.

Stephanie Kodish, an attorney with NPCA, said in a statement that continued emissions from Cliffside will worsen air conditions in the Great Smokies, which already suffer from high ground-level ozone, acidified streams and persistent regional haze.

Click here to read the petition.