Environmental Defense, et al. v. Duke Energy Corporation

Case Updates

The Supreme Court ruled against NCLC and upheld the Environmental Protection Agency’s view that changes in power plants that may contribute to air pollution must be made with a permit if there is an annual increase in emissions.

In its brief, NCLC argues that Duke Energy’s plan to modernize its electric utility plants does not need to be submitted to the government pursuant to the Clean Air Act’s New Source Review process (NSR) because no major modification of Duke Energy’s permitted operations had occurred. At issue is whether hourly or annual emissions represent the baseline for determining whether NSR governs a particular plant modernization. NCLC argues that if the Supreme Court does not affirm the lower court’s decision, hundreds of commonplace modernization activities would have to undergo NSR analysis even if their hourly emission rates are unchanged and stay below permit levels that already have been approved.