Hill Heat

The permits for a 800-megawatt, $2.4 billion Duke Energy Cliffside coal-fired power plant granted by the North Carolina Department of Air Quality in February have been struck down by a federal court. This case in part stems from a 2005 decision by the Bush administration EPA to remove these kinds of plants from the hazardous air pollutant provisions of the Clean Air Act. Shortly after the permits were granted, the District of Columbia Circuit Court of Appeals found that the 2005 EPA decision was illegal, and environmental groups used that ruling to challenge the Cliffside project. Duke’s argument was that the permit was granted before the circuit court decision, and should stand.

Lacy Thornburg, for the Western North Carolina District Court, found that the DAQ permit failed to comply with the Clean Air Act, notwithstanding EPA’s illegal maneuvers. Thornburg determined that the permitting process ignored critical provisions of the Clean Air Act, and that “Duke is simply refusing to comply with controlling law.”

The Cliffside plant “has the potential to emit in excess of ten tons per year” of hydrochloric acid and “over 25 tons of a combination of” other hazardous air pollutants. Section 112 of the Clean Air Act governs the federal control program for hazardous air pollutants.

Thornburg’s judgment found that the facts of the case were simple:

As of this date, neither the EPA or DAQ (North Carolina’s authority delegated with enforcing § 112) has issued to Duke an Air Quality Permit recognizing compliance with § 112. The material facts herein are not in dispute. Duke is simply refusing to comply with controlling law.

The Cliffside expansion project was launched in June 2006.