Edison Electric Institute Statement in Response to Supreme Court New Source Review Decision

Washington, DC () - The Edison Electric Institute today issued the following statement in response to the Supreme Court's decision in Environmental Defense v. Duke:

"We're obviously very disappointed that the Court chose to overturn the rulings of two lower courts.  The Clean Air Act's New Source Review (NSR) requirements have been plagued with uncertainty, and that uncertainty remains.  The electric power sector will continue to make major reductions in emissions, but continued uncertainty over New Source Review makes this job more difficult than it needs to be.  This uncertainty, among other things, impedes efficiency improvements that can help us reduce fuel use and emissions.

"Still, a few significant issues remain to be addressed.

"While the court essentially struck down the definition of "emissions increase" as understood by the industry, favoring instead the meaning advanced by EPA, there's plenty of evidence that utility projects at issue in NSR disputes meet both of these tests.

"Specifically, it's been our view that New Source Review requirements are triggered only when a major physical or operational change at a facility results in an increase in the hourly emissions rate, while the NSR enforcement cases are premised on the belief that NSR comes into play when there is an increase in total annual emissions.  Utilities still can argue that the activities at issue in the NSR cases did not cause total annual emissions to increase.

"In addition, the NSR program excludes projects that constitute routine maintenance, repair and replacement activities.  This exclusion was not addressed by the court, and it remains a valid defense for the industry.

"Also, on remand, Duke Energy can press its fairness claims that EPA's enforcement action constitutes 'retroactively targeting twenty years of accepted practice.'

"This decision makes abundantly clear that EPA needs to complete regulations clarifying the applicability of the Clean Air Act's New Source Review requirements.  In the meantime, we will continue to implement major emissions cuts to ensure continuing air quality improvement.  Since 1980, the utility industry has reduced emissions of sulfur dioxide and nitrogen oxides by more than 40 percent.   New regulations will require us to reduce emissions of these two pollutants, plus mercury, by an additional 60-70 percent below 2003 levels. These reductions are guaranteed."

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The Edison Electric Institute (EEI) is the association of U.S. shareholder-owned electric companies. Our members serve 95 percent of the ultimate customers in the shareholder-owned segment of the industry, and represent approximately 70 percent of the U.S. electric power industry. We also have more than 65 International electric companies as Affiliate members, and more than 170 industry suppliers and related organizations as Associate members.