Federal Court Backs States In Power Plant Pollution Case

A federal appeals court in Chicago today agreed with New York and other states that the Clean Air Act requires dirty coal-fired power plants to install pollution controls when plant modifications result in increased pollution emissions. This decision gives a major boost to New York’s efforts to reduce air pollution from power plants in the Midwest.

In a case brought by Attorney General Spitzer, other state attorneys general and the federal government against the Cinergy Corporation of Ohio, a three-judge panel of the United States Court of Appeals for the Seventh Circuit unanimously ruled that air pollution must be measured based on yearly power plant emissions rather than the hourly rate of pollution - as the company contended. The court, in an opinion authored by Judge Richard Posner, found that Cinergy’s interpretation would "open a loophole that would allow pollution to soar unregulated."

"This is a resounding environmental and public health victory," Attorney General Spitzer said. "New York has been especially hard hit by the devastating impacts of dirty air. Acid rain has damaged our lakes and streams, while scores of children suffer from asthma attacks every day. Today’s decision squarely rejects the arguments made by the coal plant owners to delay the installation of pollution controls necessary to save lives and clean up the environment."

At issue in the case is the New Source Review provision of the Clean Air Act, which requires power plants and manufacturing facilities to install modern pollution reduction controls whenever they modify their plants in a way that increases air pollution. Attorney General Spitzer has sued the owners of coal-fired power plants in six states who have violated the law by not upgrading their pollution controls. In response, the federal government has attempted to relax clean air standards and a coalition of attorneys general have successfully litigated to protect the integrity of the Clean Air Act in court.

New York sued Cinergy in 2001 after Cinergy walked away from an agreement with the federal and state governments that would have required the company to slash air pollution from 10 coal-fired power plants in Ohio, Indiana and Kentucky. One of Cinergy’s responses to the lawsuit was that its air pollution should be measured based on the speed of the emissions rather than the actual increase in pollution. The court today strongly rejected Cinergy’s argument.

Peter Iwanowicz, Vice President for the American Lung Association of NY said: "This decision is an important legal as well as public health victory. The decision will assure that power plant operators must cut the unhealthful pollution belched from their smokestacks. This pollution triggers asthma attacks in children, puts the lives of seniors with lung disease at risk and makes it difficult for otherwise healthy New Yorkers to breathe."

Neil F. Woodworth, Executive Director of the Adirondack Mountain Club said: "This critically important legal victory in Attorney General Spitzer’s efforts to get strict enforcement of the Clean Air Act will mean much less acid rain, mercury and smog in New York and the Adirondacks. It will also mean that more polluting coal-burning power plants upwind of New York will have to finally clean up their act."

The case is being handled by Assistant Attorneys General Robert Rosenthal, Eugene Kelly, Michael Myers, and Jared Snyder, under the direction of Peter Lehner, chief of the Attorney General’s Environmental Protection Bureau.

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