Alabama with utilities in pollution case
WASHINGTON --Alabama will weigh in on the side of the utility industry Wednesday as the U.S. Supreme Court takes up long-awaited litigation that could impact pollution levels from power plants across the country, including four plants in central and southern Alabama.
With Republican Gov. Bob Riley's backing, Alabama is among 11 states that filed a brief with the court supporting the defendant, North Carolina-based Duke Energy Corp., which was sued for upgrading plants without improving emissions controls.
The case is one of many court battles over the Clean Air Act's New Source Review regulations, including one involving Alabama Power Co., a subsidiary of Southern Co. Under New Source Review, utilities and other major polluters must update aging power plants with stronger emissions controls when they make improvements that increase power generation.
Power companies have resisted the law's enforcement, arguing that the pollution upgrades are unnecessary and costly.
"Those costs simply will be passed on to consumers. I think that is a foregone conclusion," Alabama Solicitor General Kevin Newsom said Tuesday in a conference call outlining the state's position. "State attorneys general have a statutory if not constitutional obligation to protect the interests of ratepayers."
Calling the law a "rigorous, federalized" regime, Newsom said states should have more leeway in deciding how to apply it. He said state regulators, as the primary enforcers of the law, would be swamped if the current interpretation is allowed to stand.
Assuming the Supreme Court delves deeply into the issues involved, Newsom said the case would help resolve conflicting lower court rulings and have a direct impact on the Alabama case, which involves plants in Mobile County, Shelby County, Walker County and Greene County.
With support from groups such as the American Lung Association, more than a dozen other states have taken the opposing position and filed a brief supporting the environmental groups that sued Duke Energy.
They argue that the public health costs of the smog and acid rain created by the pollution far outweigh the companies' expenses. The utilities, the critics say, are simply trying to squeeze as much cheap power out of aging coal-fired plants as they can before investing in improvements.
"From their perspective it is cheaper to keep operating these plants ... when they do that, the real costs are passed along to the people of Alabama and not the shareholders of Alabama Power Co.," said Jim Grode, a lawyer with the Southern Environmental Law Center, which is a plaintiff in the Alabama case.
In August, a federal judge dismissed the lawsuit against Alabama Power Co., ruling that the federal government had inconsistently interpreted the law.
Grode's organization has appealed the ruling and requested that the decision be delayed until after the Supreme Court issues its ruling in the Duke Energy case.
