Sierra Club and Allies Win Fight Against Duke’s Cliffside Coal Plant in North Carolina
April 15, 2011
In an important legal victory, on April 15, 2011, the U.S. Court of Appeals for the Fourth Circuit affirmed Sierra Club and its allies’ district court victory in their challenge against Duke Energy for constructing Cliffside Unit 6 without a hazardous air pollutants (HAPs) determination. The decision affirms District Judge Thornburg’s determination that Duke was required to conduct a maximum achievable control technology (MACT) analysis for HAPs from the coal-fired power plant, even though Duke received its permit and commenced construction under the Clean Air Mercury Rule. The appellate court ruling also upholds the district court’s award of attorneys’ fees and costs of over $470,000 to the environmental groups.
In July 2009, the district court dismissed the lawsuit after requiring Duke Energy to apply for a MACT determination with the North Carolina Division of Air Quality. Sierra Club is now engaged at the state administrative court level, fighting to have Cliffside Unit 6 declared a “major source” of HAPs, and therefore subject to more stringent MACT standards. Following the district court’s dismissal, Sierra Club and its allies successfully moved for attorneys’ fees and costs, and Duke Energy appealed that decision to the Fourth Circuit.
The plaintiff groups – Sierra Club, Environmental Defense Fund, and National Parks Conservation Association – are represented by Southern Alliance for Clean Energy and Natural Resources Defense Council.
December 3, 2008
On December 2, 2008, Sierra Club and our allies won a major victory against Duke Energy after federal judge Lacy Thornburg ruled that Duke was in violation of the Clean Air Act (CAA) for failing to adequately regulate toxic air pollution from its proposed Cliffside Unit 6. The judge ruled that under the CAA, Duke is required to perform a Maximum Achievable Control Technology (MACT) analysis to determine how to control mercury and other hazardous air pollutant (HAP) emissions from the proposed unit. Duke has sixty days to complete its analysis, but has stated it will appeal the decision.
Duke Energy initially obtained its air permit for the new unit under the Bush administration’s Clean Air Mercury Rule, a cap and trade program put in place to regulate HAPs from industrial sources that oddly exempted coal-fired plants (the dirtiest polluters) from having to control their toxic air pollutant emissions. Fortunately, federal judges struck down Bush’s mercury rule in February 2008, thus requiring all new coal plant facilities to regulate their HAP emissions, which Duke repeatedly refused to do.
This is the first ruling in the nation that holds that a new facility – one that received its permit and began construction before the court struck down the mercury rule in February – must comply with the MACT requirements of the CAA and it will have far-reaching implications across the country. New coal-fired facilities, regardless of when their air permit was issued, are now required to control their HAP emissions to the maximum extent possible.
Details and Documents:
Circuit Judges' Opinion
April 15, 2011, U.S. Court of Appeals for the Fourth Circuit
Memorandum and Order of Judge Lacy Thornburg
December 2, 2008, U.S. District Court of North Carolina
See other "Stopping the Coal Rush" cases.