Appeals Court Rules Against Alabama Power in Clean Air Act Enforcement

The Eleventh Circuit Court of Appeals today reversed an Alabama trial court’s decision excluding expert evidence in a Clean Air Act enforcement case that the U.S. Environmental Protection Agency brought against Alabama Power Company. The Southern Environmental Law Center intervened in the case representing the Alabama Environmental Council.

The case contends that Alabama Power undertook major projects at three of its coal-fired plants that resulted in increased pollution, yet the company failed to obtain a permit or install air pollution controls that would reduce emissions from the plants as required by federal law.

Under the Clean Air Act’s New Source Review program, where an old coal-fired unit undergoes a renovation project that could be expected to increase its pollution significantly, the company must apply best available controls to reduce that pollution. The district court excluded expert testimony showing that Alabama Power should have expected its large scale renovation projects to increase coal burning and pollution, a decision that was appealed by the U.S. Environmental Protection Agency and the Alabama Environmental Council.

The Eleventh Circuit Court of Appeals in Atlanta reversed the district court, finding that its exclusion of the expert evidence was an abuse of discretion.

“This decision is a major win in the fight to clean up the nation’s dirtiest coal plants,” said Keith Johnston, managing attorney for the Southern Environmental Law Center’s Birmingham office. “It affirms that companies like Alabama Power must consider the increased pollution from their coal plant overhauls, and it underscores the need to reduce that pollution and the harm it does to the American public.”

The case involves three units at Alabama Power’s Greene County, Barry, and Gorgas coal plants. The case will now be remanded to the district court, U.S. District Judge Virginia Hopkins. The U.S. Attorney in Birmingham had signed a motion in 2012 asking for Judge Hopkins to recuse herself because she controlled stock in the Southern Company, Alabama Power’s parent company, while presiding over the case.