Today, the U.S. Supreme Court denied DTE Energy Company’s petition to review an ongoing enforcement action regarding excessive air pollution from DTE’s Monroe coal-fired power plant.  The U.S. Environmental Protection Agency, and Sierra Club represented by Earthjustice, have pursued this action since 2010, when DTE undertook a $65 million overhaul of Unit 2 of the aging Monroe coal plant without first installing modern pollution controls to lessen the amount of toxic pollution increases, as required by the Clean Air Act’s New Source Review (NSR) program.  

DTE improperly dismissed its own projection showing that emissions would increase by thousands of tons per year after the overhaul and argued that an enforcement action could not proceed until after a pollution increase actually occurred. The Sixth Circuit Court of Appeals twice rejected DTE’s argument because Congress designed the Clean Air Act to prevent pollution increases before they occur, and the Supreme Court declined to review the case. As a result, the path is now cleared for enforcement to proceed against DTE.

Unfortunately, last Thursday, the EPA made a 180-degree turn on this issue, with Administrator Scott Pruitt issuing a so-called “New Source Review (NSR) Policy Guidance” memo which tries to adopt DTE’s rejected litigation position as the agency’s new approach to NSR nationwide.  That memo, which Pruitt issued without any opportunity for public review and comment, dictates that EPA will no longer bring NSR enforcement actions until after the public is exposed to increased pollution, and will no longer seek to challenge even obviously faulty or fraudulent projections by a utility that a proposed modification to a coal plant will purportedly not lead to a New Source Review-triggering emissions increase so long as such projection was procedurally done properly.

“The Supreme Court’s welcomed decision not to further engage with DTE’s rejected litigation position makes the Pruitt EPA’s adoption of that position even more appalling,” said Shannon Fisk, managing attorney with Earthjustice.  “The new Pruitt approach appears to be little more than an attempt to give coal utilities a sense of empowerment to ignore the critical public health protections of the Clean Air Act New Source Review program.  Such approach should not stand as it is contrary to law, public health, and common sense.” 

“It is pretty simple. DTE chose to overhaul their dirty coal plant and not install modern pollution control technology at that time even though their own projection showed that pollution would increase after the overhaul,” said Regina Strong, Director of the Sierra Club’s Beyond Coal Campaign in Michigan. “The Sixth Circuit Court of Appeals has twice rejected DTE’s argument and now the U.S. Supreme Court has declined to review the case. While DTE has belatedly installed controls at Monroe, the delay exposed people to excessive and harmful pollution for three years.  It is beyond time for it to clean up or retire its nine other coal units that lack modern pollution controls.”