# Petition for Writ of Certiorari — Environmental Defense v. Duke Energy Corporation

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0237%3A02

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007
- **Citation:** 549 U.S. 561

## Text

increases of pollutants, see 42 U.S.C. 7473 — through
permitting of “major” sources of pollution. 42 U.S.C. 7475,
7479(1), 7602(j). If permitted, major sources constructed or
modified in a PSD area must install the “best available
pollution control technology” (“BACT”), id 7475(a),
identified on a “case-by-case” basis based on environmental,
economic, and other factors. See id 7479(3). Facilities
subject to PSD must also comply with the NSPS and other
CAA requirements. /d. 7475(a)(3). See generally ADEC, 540
U.S. at 472-75. (Together with corresponding site-specific
permitting requirements for nonattainment areas, 42 U.S.C.
7501-7515, PSD review of new and modified sources is
called “New Source Review” or “NSR.” See New York, 413
F.3d at 12-13.).

Whereas the 1970 NSPS program establishes categorical
requirements that apply “[w]ithout regard to the effect of the
emissions from [an NSPS] facility will have on overall air
quality,” Potomac Electric Power Co. v. Environmental
Protection Agency, 650 F.2d 509, 518 (4" Cir. 1981), PSD
“focuses on where the plant will be located and its potential
effect on its environs,” Citizens for Clean Air v. EPA, 959
F.2d 839, 849 (9 Cir. 1992), and demands a site-specific
review of whether a proposed major source will contribute to
a Significant degradation of local air quality despite
compliance with the NSPS. See 42 U.S.C. 7470(1); Alabama
Power v. Costle, 636 F.2d 323, 346-51 (D.C. Cir. 1979); 44
Fed. Reg. 51,924, 51,931 (Sept. 5, 1979).

The 1977 amendments granted existing sources a qualified
exemption from the PSD requirements based in part on a
concern that “[flor some of the older and smaller sources, it is
not physically or economically feasible to retrofit * * *
control technology.” H.R. Rep. No. 94-1175 at 159 (1976).
The resulting environmental harms were understood to be
limited, however, because existing plants had limited useful
lives and would be retired within a relatively short time. See,
e.g., H.R. Rep. No. 94-1175 at 159 (“[I]}t is imprudent to
backfit FGD [a control technology] into existing plants,

especially older units facing retirement within 10-15 years.”);
S. Rep. No. 95-127 at 128 (1977) (“There are in the United
States approximately 200 old coal-fired power plants over 20
years of age. * * * Most will be totally phased out of
operation in the next 5 to 20 years.”) (additional views of Sen.
Baker).

But consistent with its emphasis on “‘a proper balance
between environmental and economic goals,’” New York, 413
F.3d at 13 (citations omitted), Congress subjected existing
major sources that undertake “modifications” to PSD. The
PSD provisions define “construction” of a source to include
“modification,” which, in turn, is defined by cross-reference
to the 1970 Act’s definition of “modification” for the NSPS
program, which embraces physical or operational “changes”
to a source that “increase the amount” of any air pollutant
emitted. See 42 U.S.C. 7479(2)(C) (PSD “construction”
“includes the modification (as defined in section 7411(a) of
this title) of any source or facility”).

In 1980, EPA promulgated comprehensive PSD >
regulations specifying what activities satisfy the two statutory
requirements for a “modification”: (1) a physical or
operational “change,” and (2) an “increase” in the amount of
any air pollutant emitted by the source. 45 Fed. Reg. 52676
(Aug. 7, 1980); see 40 C.F.R. 51.166 (1987).' The PSD
regulations define an emissions “increase” in terms of “actual
emissions,” measured in “tons per year.” 40 C.F.R.
51.166(b)(2), (3), (21) (1987). EPA emphasized that it had
drafted the regulations to comport with the Alabama Power
court’s reading of the PSD statute to emphasize actual

' EPA initially promulgated PSD regulations in 1978, 43 Fed. Reg. 26,380
(June 19, 1978), but it replaced them with new regulations following the
D.C. Circuit’s decision in Alabama Power Co. v. Costle, 636 F.2d 323
(D.C. Cir. 1979). The PSD regulations applicable to the activities at issue
in this case, which occurred between 1988 and 2000, were promulgated in
1980 and recodified in 1987. See App. Sa n.1. Certain of the activities are
governed by a subsequent set of PSD regulations promulgated in 1992, 57
Fed. Reg. 32,314 (July 21, 1992), but the differences are not material here.

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impacts of source activity on ambient air. 45 Fed. Reg. at
52699-52700. Thus, EPA’s 1980 rules sought “as close a
correspondence as possible” between the regulatory coverage
of new and modified sources and their actual impacts on air
quality and available PSD increment. 45 Fed. Reg. at 52,701.
EPA specifically refused to exempt from the emissions-
increase calculation additional emissions that occur when
physical improvements at an existing facility enable
“increased hours of operation or capacity utilization.” Jd. at
52,714. See also id at 52,718.“ Petitions for review
challenging the EPA’s 1980 regulations were filed in the D.C.
Circuit, and then stayed.’

EPA issued a formal interpretation of the 1980 regulations
in a 1989 applicability determination concerning the
refurbishment of old power generation facilities by the
Wisconsin Electric Power Company (“WEPCo”). The agency
rejected a utility’s contention that only increases in the
source’s maximum emissions “rate” triggered PSD review,
explaining that actual emissions are the product of “three
factors”: (1) the “emissions rate” (“e.g., pounds of sulfur
dioxide per ton of coal combusted” emissions per unit of

2 The regulations specify, however, that an “an increase in the hours of
operation or in the production rate,” does not by itself constitute a
“physical change or change in the method of operation.” 40 C.F.R.
51.166(b)(2\{iii). Regarding its decision to treat increased hours of
operation as a PSD trigger only when accompanied by accompanied a
physical or operational “change,” EPA explained that while “as a general
rule Congress intended any significant net increase in such emissions to
undergo PSD” review, the statute’s “emphasis * * * on ‘construction””
indicated an intent not to find a “modification” requiring PSD review
when a company merely increases its hours of operation “to take
advantage of favorable market conditions.” 45 Fed. Reg. at 52704.

> Challenges to the 1980 regulations were consolidated in Chemical
Manufacturers Assoc. v. EPA, No. 79-1112 (D.C. -Cir.), then stayed
pursuant to a settlement agreement that obligated EPA to consider
amendments to its PSD regulations. EPA ultimately decided not to adopt
the proposed regulations, see 67 Fed. Reg. at 80204-06, and the revived
challenges were addressed in New York. See 413 F.3d at 14-15.

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production); (2) the “production rate” (“e.g., tons of coal
combusted per hour’’), and (3) “hours of operation (e.g., hours
per year).” Letter from Don R. Clay, Acting Assistant
Administrator for Air and Radiation, to John H. Boston, Vice
President, WEPCo. (Feb. 15, 1989) (CA App. 838). EPA
explained that “an increase in any one of these three specified
factors, if attributable to a physical or operational change, can
trigger an emissions increase for PSD purposes[.]” /d.
Reviewing that determination under Section 307(b), the
Seventh Circuit upheld EPA’s reliance on actual emissions
(including those reflecting increased hours of operation).
Wisconsin Electric Power Co. v. Reilly, 893 F.2d 901 (7" Cir.
1990). The court observed that EPA’s PSD and NSPS
regulations measured emissions increases in “a fundamentally
distinct manner,” explaining that NSPS “is concerned
primarily with increases in emissions rates, expressed in
kilograms per hour,” whereas “[uJnlike NSPS, PSD is
concerned with changes in total annual emissions, expressed
in tons per year,” 893 F.2d at 913, 915 (emphasis original).
The court also agreed with EPA that the increased hours of
operation made possible by WEPCo.’s extensive upgrading of
its facilities did not qualify for the “increased hours of
operation” exemption, which “was provided to allow facilities
to take advantage of fluctuating market conditions, not
construction or modification activity.” 893 F.2d at 916 n.11.
See also Puerto Rican Cement Co. v. EPA, 889 F.2d 292, 297
(1* Cir.1989) (Breyer, J.) (upholding EPA’s application of
1980 regulation measuring PSD emissions “increases” to
include emissions from increased utilization enabled by
physical upgrade and observing that EPA’s regulation took
account of “the fact that a firm’s decision to introduce new,
more efficient machinery may lead the firm to decide to
increase the level of production, with the result that, despite
the new machinery, overall! emissions will increase”).
Factual and Procedural Background. Respondent Duke
operates thirty coal-fired generating units at eight plants in the
Carolinas that began service between 1940 and 1975. In the

1980s and 1990s, Duke undertook a “Plant Modernization
Program” intended to refurbish these facilities to allow the
plants — many of them so worn as to be often or always out of
service — to operate more of the time, and to enjoy longer
lives. Duke stated that the subject facilities were “no longer
reliable because of their age” (CA App. 744), and would that
some require a “total rehabilitation” that would extend the
facility’s useful life an “additional 20 years,” “well beyond”
its “expected retirement.” CA App. 770-72, 776. The costs
of rehabilitation were often many times the original cost of
the unit. See CA App 730, 785-86. To accomplish the
renovations, Duke shut down the units for lengthy periods, in
some instances more than a decade. CA App. 756-61.

Unlike the regulated entities in cases like WEPCo. and
Puerto Rican Cement, Duke never sought an applicability
determination on whether its modernization undertaking was
subject to PSD review; rather it simply proceeded with the
project upgrades at the various plants. In December 2000, the
United States filed an action against Duke in the United States
District Court for the Middle District of North Carolina
pursuant to Sections 113(b) and 167 of the CAA, charging
that Duke had violated the Act by engaging in 29
“modifications” without obtaining PSD permits required
under the Act and the applicable state implementation plans.
Petitioners intervened as plaintiffs.

The parties disputed how to measure whether Duke’s
Modernization Program caused a “significant net emissions
increase” under the governing 1980 PSD regulation. 40
C." R. 51.166(b) (1987). The United States submitted that
those extensive refurbishments would increase emissions by
allowing aging facilities that had fallen into sporadic use or
total disuse to operate more of the time, resulting in large
increases in the actual, annual emissions targeted under the

* A Duke representative told state regulators in 1985 that “[h]istorically,
units of this age and condition would be retired and scrapped.” CA App.
744.

1980 PSD regulations. However, the district court agreed with
Duke’s argument that, in employing for the PSD program the
same statutory definition of “modification” already in place
for the NSPS, Congress intended to adopt an NSPS regulation
that (according to the court) employed a “maximum hourly
emissions rate” test under which a project refurbishment
enabling a plant to operate for more hours, but without
changing the maximum emissions rate, would not count as
having “increased” emissions. App. 58a-61a. To frame the
issue for appeal, plaintiffs stipulated that Duke’s activities
would not cause a PSD-triggering “net emissions increase”
under such a test and, based on that stipulation, the court
entered final judgment for Duke. App. 87a.

After initial briefing and oral argument, the Fourth Circuit
panel directed the parties (App. 21a) to address the relevance
of a case none had cited, Rowan Companies, Inc. v. United
States, 452 U.S. 247 (1981), in which this Court invalidated
certain Treasury regulations that construed identical
definitions of “wages” in two sections of the Internal Revenue
Code differently. The United States and petitioners argued ~
that the Rowan did not call into question EPA’s PSD
regulations, and that Section 307(b) barred review of the
consistency of the regulations with the CAA in this
enforcement action.

The Fourth Circuit affirmed the judgment for Duke. It did
not adopt the district court’s theory that Congress had adopted
a specific NSPS regulatory test. Instead it reasoned that
“because Congress mandated that the -PSD definition of
‘modification’ be identical to the NSPS definition of
‘modification,’ the EPA cannot interpret ‘modification’ under
the PSD inconsistently with the way it interprets the term
under the NSPS.” App. lla (footnote omitted). The court
relied both on “[cJommon sense,” and on Rowan, which it
read to require that “when Congress itself provided
‘substantially identical’ statutory definitions of a term in
different statutes, the agency charged with enforcing the
statutes could not interpret the statutory definitions

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‘differently.”” Jd. at 547 (quoting Rowan, 452 U.S. at 257).

In a footnote, the Fourth Circuit addressed the appellants’
argument that CAA Section 307(b) precluded it from
reviewing consistency of the PSD regulations with the statute.
The panel stated that “no question as to the validity of the
PSD regulations is (or could be, see 42 U.S.C. § 7607(b))
[Section 307(b)], presented here,” explaining that “the PSD
regulations can be interpreted consistently with pre-existing
principles — the NSPS regulations * * *” App. 15a n.7. The
Court further stated that its decision did not reflect an
“invalidation” of the regulations, but merely a requirement
that the PSD regulations and the NSPS regulations be
“similarly interpreted and enforced.” Jd.

Nine days later, the D.C. Circuit, exercising jurisdiction
under Section 307(b), issued its decision on the consolidated
challenges to EPA’s 1980, 1992, and 2002 PSD regulations.
New York, 413 F.3d 3. The court upheld the 1980 PSD
regulations at issue here against challenges by an industry
coalition including respondent Duke, specifically rejecting
industry’s argument that Congress, by incorporating for PSD
purposes the statutory definition of “modification” initially
enacted for the NSPS program, had adopted specific NSPS
regulations in place at that time. 413 F. 3d at 19-20. The
court ruled that the Act’s use of the cross-referencing
definition created no such inference about legislative intent,
noting among other things that when the PSD definition was
added in 1977, two different regulatory definitions for NSPS
emissions “increases” (one of which industry had not cited)
were in place. /d.

The D.C. Circuit acknowledged the decision in this case,
but found that industry petitioners there had waived the
argument that “Congress must use identical regulatory
definitions of modification across the NSPS and NSR
programs.” 413 F.3d at 20. Noting that industry had made
“no attack at all on the reasonableness of EPA’s definition of
modification for NSR (apart from its divergence from one of
the 1975 NSPS definitions)” the court “reject[ed] this portion

11

of industry’s challenge to the 1980 and the 2002 rules.” Jd

In New York, the D.C. Circuit set aside a portion of the 2002
regulations, called the “Clean Units” provision, which
exempted from PSD review certain changes that increased
actual emissions. 413 F.3d at 39-40. The D.C. Circuit ruled
that “the plain language of the CAA indicates that Congress
intended to apply NSR [which includes PSD} to changes that
increase actual emissions instead of potential or allowable
emissions[.]” /d. at 40.

Petitioners and the United States sought rehearing in the
Fourth Circuit. The United States referenced the Fourth
Circuit’s explanation that Section 307(b) was no bar because
the court was “merely mandating one possible interpretation,”
of the PSD emissions “increase” regulation, and then
observed that D.C. Circuit in New York had just “held that the
statutory language mandates a contrary interpretation,” a
situation the United States termed as “precisely the type of
outcome that [Section 307(b)] was enacted to prevent.” U.S.
Pet. for Reh. in 04-1763 at 10 (filed Aug. 10, 2005) (2005
WL 1978694). Both petitions were denied.

Shortly thereafter, EPA issued a notice of proposed
rulemaking proposing to amend its regulations to establish a
“uniform emissions test nationally under the NSPS and NSR
programs[.]” 70 Fed. Reg. 61081, 61083 (Oct. 20, 2005).
While stating that EPA “respectfully disagreed” with the
decision in this case, the notice stated that the need for
amendments was “apparent” in light of the panel’s ruling. /d.
at 61083 & n.3.

* Petitions for panel rehearing and rehearing en banc filed by EPA and
industry in the New York case were denied on December 9, 2005, 2005
WL 3334349 (D.C. Cir.).

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REASONS FOR GRANTING THE WRIT

I. THE COURT OF APPEALS INVALIDATED
NATIONAL CAA REGULATIONS IN VIOLATION
OF SECTION 307(b), IN VIOLATION OF THIS
COURT’S PRECEDENT AND DECISIONS OF
OTHER COURTS OF APPEALS
The court of appeals held that EPA “cannot interpret

‘modification’ under the PSD inconsistently wih the way it

interprets that term under the NSPS,” because Congress

“intended the statutory definitions of ‘modification’ in the

PSD and NSPS provisions to be interpreted identically.”

App. 14a. This ruling cannot be fairly read as anything short

of an invalidation of the test for “emissions increases” set

forth in EPA’s 1980 regulations — turning on changes in

actual, annual emissions, measured in “tons per year,” 40

C.F.R. 51.166(b)(3), (21) (1987) — as contrary to the statute.°
In reaching that holding, the Fourth Circuit disregarded all

three of the distinct limitations on the timing, forum, and type

of judicial review proceedings that Section 307(b) imposes:
exclusive D.C. Circuit review of national CAA regulations;
filing of challenges within 60 days; and the command that

EPA actions reviewable by petition for review “shall not be

subject to judicial review” in enforcement proceedings. See

also 42 U.S.C. 7607(e).

The basis of the Fourth Circuit’s ruling was not the
application of EPA’s regulations to particular facts; rather the
court announced a categorical rule, based on assertedly
“plain” statutory language, that EPA lacks the authority to
adopt PSD modification regulations that interpret emissions
“increase” — a component term of the modification definition
— differently from how EPA’s NSPS regulations interpret that

* As we explain below, the Fourth’s explanation that Section 307(b) was
no bar because the court was merely “interpreting” the 1980 regulations,
App. | la n.7, was demonstrably wrong (and if correct would still not have
justified the court’s action).

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term. See App. 1I4a-18a. Indeed, the court candidly
acknowledged that because (in its view) Congress had
“directly spoken to the precise question at issue * * * the
language and various interpretations of the PSD regulations”
were “largely irrelevant to the proper resolution of this case.”
App. lla n.3. But Section 307(b) expressly forbids courts
from engaging in such statutory-consistency review of
national EPA regulations in an enforcement proceeding.

The Fourth Circuit’s decision here represents an abrupt
departure from the decisions of other courts of appeals, which
have held that contentions that CAA regulations are contrary
to statute are cognizable only in the D.C. Circuit, and are
barred from enforcement proceedings.’ These courts have
correctly regarded the limitations in Section 307(b) (and the
similar or identical limitations on judicial review provided in
many other major regulatory statutes, see p. 28-29, infra) as
circumscribing the “subject matter jurisdiction” of federal
courts that are asked to review EPA regulations and other
final agency actions. See United States v. Ethyl Corp., 761
F.2d 1153, 1154 (Sth Cir. 1985).* They have emphasized the

” See, e.g., Enviro Tech International, Inc. v. EPA, 371 F.3d 370 (7th Cir.
2004) (review of EPA regulations “not within our own authority,”
because “that task belongs to” the D.C. Circuit); United States v. Kung-
Shou Ho, 311 F.3d $89, 607-08 (S" Cir. 2002) (challenge to definition of
“facility” in 1990 CAA regulations had to be brought in D.C. Circuit);
United States v. Walsh, 8 F.3d 659, 664 (9 Cir. 1993) (declining to
review regulations that were “challengeable under the procedures and
limits set out in 42 U.S.C. § 7607(b\1)”). See also Siegelman v. EPA,
911 F.2d 499 (11™ Cir. 1990) (claim that “EPA’s regulation conflicts with
an act of Congress” may not be entertained in enforcement proceeding
under RCRA provision, 42 U.S.C. 6976(a\(1), similar to CAA Section
307(b)); Chemical Weapons Working Group, Inc. v. U.S. Dept. of the
Army, \11 F.3d 1485, 1492 (10® Cir. 1997); WEPCo., 893 F.2d at 914;
Hawaiian Elec. Co., Inc. v. E.P.A.,, 723 F.2d 1440, 1445 (9" Cir. 1984).

* See also, e.g., Pan American Grain Mfg. Co., Inc. v. EPA, 95 F.3d 101,
103 (1* Cir. 1996); Greenpeace, Inc. v. Waste Technologies Industries, 9
F.3d 1174, 1180 (6" Cir. 1993); United States v. Walsh, 8 F.3d 659, 664
(9th Cir. 1993); Ohio Environmental Council v. United States District
Court, 565 F.2d 393, 397 (6" Cir. 1977).

14

practical importance of adhering to Section 307(b)’s
prescriptions in light of its “clear language and Congress’s
manifest intent to avoid protracted and _ inconsistent
adjudication.” /d. at 1156. They have recognized, as has this
Court, Section 307(b)’s careful language limiting and
channeling judicial review of CAA implementation, means
“exactly what it says.” Harrison, 446 U.S. at 589. See also
Hallstrom v. Tillamook County, 493 U.S. 20, 31 (1989)
(holding that statutory prerequisites to citizen suits under
Solid Waste Disposal Act was “mandatory” and leave courts
no “discretion” to “disregard these requirements”).

This is not the first unauthorized attack on these very 1980
PSD regulations. In Puerto Rican Cement, 889 F.2d 292, the
First Circuit ruled that the petitioner in a Section 307(a)
proceeding for review of a final EPA action of local or
regional applicability could not challenge the 1980 PSD
“emissions increase” regulations at issue here (as
incorporated in the parallel rules governing federally
administered PSD areas, see 40 C.F.R. 52.21(b) (1987)).
Pointing to the pending but stayed judicial review proceeding
in the D.C. Circuit, see n. 3, supra, Judge Breyer wrote:

EPA promulgated the regulations in question in 1980, see

45 Fed. Reg. 52,735 (1980); other parties have challenged

their lawfulness in a suit filed in the Court of Appeals for

the District of Columbia, see Chemical Mfrs. Ass'n y.

EPA, No. 79-1112 (D.C.Cir.). The Company has not tried

to intervene in that suit (which is still pending). It seems

obviously too late for the Company to mount an
independent legal challenge here. See Hawaiian Elec. Co.
4 \v. EPA}, 723 F.2d [1440, 1447 (9th Cir.1984)] (holding
that a challenge to another provision of 40 C.F.R. § 52.21
was untimely under 42 U.S.C. § 7607(b)(1)).
889 F.2d at 299. See also WEPCo., 893 F.2d at 914 n.6. It
should be noted that the prohibitory line the Fourth Circuit
leapt across here was far brighter than the one the First
Circuit properly declined to cross: This case is an
enforcement action, governed not only by the 60-day and

15

D.C. Circuit-only limitations at issue in Puerto Rican Cement,
but also by Section 307(b)(2)’s specific command that courts
“shall not” entertain collateral attacks to EPA regulations and
other final actions in enforcement actions. And it comes fully
16 years after the challenge that was “obviously too late” in
Puerto Rican Cement.

The court of appeals’ decision is also in tension with this
Court’s Section 307(b) decisions. In Adamo Wrecking, 434
U.S. 275, a criminal enforcement proceeding against a
company alleged to have violated an EPA emissions standard
for asbestos, this Court ruled that Section 307(b) did not bar
the defendant from interposing the defense that the
requirement in question did not constitute an “emissions
standard” under the CAA. /d. at 285. The Court emphasized
the criminal-enforcement context and uncertainty about
whether Section 307(b)’s bar was intended to extend to
EPA’s threshold determination on what is an “emissions
standard.” Even as it permitted the company to assert this
limited defense, the majority emphasized that it was

aware of the possible dangers that flow from this

interpretation; district courts will be importuned, under

the guise of making a determination as to whether a

regulation is an ‘emission standard,’ to engage in judicial

review in a manner that is precluded by Section 307(b)(2)

of the Act. This they may not do.

Id. at 285. In a dissenting opinion joined by two other
Justices, Justice Stewart expressed concern that even the
limited form of review permitted by the majority’s ruling
would “frustrate[} the intent of Congress to establish a speedy
and unified system of judicial review under the Act,” “invite[]
precisely the sort of inconsistent judicial determinations by
various courts that Congress sought to prevent,” and
undermine legislative intent “to maintain the integrity of the
time sequences provided throughout the Act.” /d. at 292. He
perceived a “camel’s nose” in the tent, and “fear[ed] that the
rest of the camel” was “almost certain to follow.” /d. at 293.
The Fourth Circuit’s decision here highlights the risks of

16

circumventing Section 307(b) noted by majority and
dissenters alike in Adamo Wrecking. See United States v. Ho,
311 F.3d 589, 607 (5" Cir. 2002) (Adamo Wrecking
“specifically forebade” lower courts from considering
procedural or substantive inquiries into a regulation during an
enforcement proceeding). And here -- where the challenger
had every opportunity to present the argument in a D.C.
Circuit Section 307(b) petition proceeding -- no due process
concerns are present that might arguably warrant a relaxation
of the express prohibition on collateral attack set forth in
Section 307(b). See Ethyl Corp., 761 F.2d at 1156 (“we
would be remiss to allow the narrow holding of Adamo
Wrecking to bulldoze the statute’s jurisdictional limitations in
civil enforcement proceedings”) (citing City of Seabrook v.
EPA, 659 F.2d 1349, 1370 (5 Cir. 1981)). Indeed, Section
307(b) protects interests in procedural regularity and fairness
— affording EPA, states, regulated entities, and environmental
groups alike clear rules on when, where, and how CAA
regulations may be challenged — that strongly disfavor the
sort of end run allowed here.

The reasons the Fourth Circuit gave for avoiding Section
307(b) only compound its jurisdictional error. In response to
objections that EPA’s regulations were subject to exclusive
review in the D.C. Circuit, the Fourth Circuit contended that
it was merely addressing an “interpretation” of EPA’s 1980
PSD regulations. See App. 11a n.7. The court reasoned that
“the PSD regulations can be interpreted consistently” with the
NSPS regulations, citing without any analysis the district
court’s interpretation of the regulations (which EPA and
petitioners contended was patently incorrect),? and opined

® The district court misread the provision of the 1980 regulations that
provides that an increase in hours of operation or production rate does not
constitute a “physical change” under the first prong of the modification
test, 40 C.F.R. 51.166(b)(2\iii)(f) (1987), to mean that even where there
is a physical change at a facility, the emissions increases from increased
hours of operation enabled by the change are not counted toward
increases. App. 59a-62a. But under the plain language of the regulations,

17

that a “choice of this interpretation — as required under the
statute — over the EPA’s interpretation is not an invalidation
of those regulations.” /d.

Even if one disregards the panel’s own acknowledgement
that the “the language and various interpretations of the PSD
regulations” were “largely irrelevant to the proper analysis of
this case,” App. 15a n.7, the Fourth Circuit’s asserted reason
for bypassing Section 307(b) is demonstrably wrong.
Undermining its claim to be engaged in “interpretation” of the
regulations, the court made no effort to follow the lodestar in
any such endeavor -- the regulatory text. See Christensen v.
Harris County, 529 U.S. 576, 587-88 (2000). As other courts
of appeals have recognized (in cases properly before them
under Section 307(b)), the NSPS and PSD regulations say
very different things, and these plain textual differences have
clear consequences. Among other things, the NSPS regulation
in question targets “emissions rates” measured in kilograms
per hour, 40 C.F.R. 60.14(b) (1987), whereas the PSD
regulations address “actual emissions” in “tons per year,” 40
C.F.R. 51.166(b)(2), (3), (21) (1987). As the D.C. Circuit
explained: “While the NSPS regulatory definition of
modification allegedly focuses on the hourly rate of
emissions, the NSR definition focuses on net emissions
increases measured in tons per year. Compare 40 C.F.R.
60.14 (NSPS with id 52.21(b)(2)(ii) (NSR).” New York, 413
F.3d at 18. The Seventh Circuit highlighted that same marked
difference in WEPCo, 893 F.2d at 905. See also, e.g., 57 Fed.
Reg. 32,314, 32,316 (July 21, 1992) (contrasting the NSPS
and PSD tests for emissions increase).

The court’s suggestion that the PSD regulations can be
“interpreted” to mean the same thing as the NSPS regulations

the “increased hours” exclusion extends only to the “physical change”
inquiry, not the separate “emissions increase” inquiry. Compare 40
C.F.R. 51.166(bX2\iii)(f) with 40 C.F.R. 51.166(bX3)(i)) (App. 102a,
103a). EPA made this clear when it promulgated the regulations in 1980,
45 Fed. Reg. at 52704, and the district court’s misconstruction was
explicitly rejected in WEPCo., 893 F.2d at 916 n. 11.

is contrary to analysis in WEPCo, 893 F.2d at 905; Puerto
Rican Cement, 889 F.2d at 296-97; and to the D.C. Circuit in
the decision authoritatively reviewing the regulations under
Section 307(b), New York, 413 F.3d at 18. Those courts
correctly recognize that the test of emissions increases
established under the 1980 PSD regulations is different in
textual expression, method of application, and concrete
consequences from the hourly “emissions rate” standard
under the NSPS regulation highlighted by the district court
and the Fourth Circuit. The differences between the
maximum hourly emissions rate mandated by the Fourth
Circuit and the actual, annual emissions standard expressed in
the PSD regulations are large — often (as here) determinative
of whether a pollution source will be treated as having
increased emissions a great deal, or not at all. See, e.g., New
York, 413 F.3d at 15 (illustrating consequences of choice
between maximum-hourly and actual-annual standards by
reference to the facts of Puerto Rican Cement, 889 F.2d at
293, 296-98). See also p. 27, infra.

Because the 1980 PSD regulations cannot be read to
provide for the “hourly rate” test ostensibly provided under
the NSPS regulations, the Fourth Circuit’s rationale for
sidestepping Section 307(b) was insupportable. Even had the
court actually engaged in close textual exegesis, no amount of
“interpretation,” however artful, could eliminate the clear
differences between the respective regulations (differences
that alone seem to violate the panel’s conclusion that the
CAA requires “the statutory definitions of ‘modification’ in
the PSD and NSPS provisions to be interpreted identically.’
App. 14a (emphasis added).

But even if the court had been correct that it was merely
mandating one linguistically possible and statutorily required
“interpretation” of the PSD regulations, it still would have
lacked authority to strike down EPA’s regulatory test for PSD
emissions “increases.” Contrary to the panel’s view, EPA’s
authoritative “interpretations” of CAA regulations are not
somehow exempt from Section 307(b)’s strictures. As this

19

Court made clear in Harrison, 446 U.S. 578, Section
307(b)(1)’s limitations apply not only to regulations, but also
to “any other final action” of EPA. Concluding that Section
307(a)’s broad language “must be construed to mean exactly
what it says,” id. at 584, the Court held that a petition for
review was the exclusive means of review of an EPA
determination that the NSPS applied to respondent’s waste-
heat boilers.

As the D.C. Circuit explained in New York, EPA had
repeatedly reaffirmed as the governing standard under the
1980 PSD regulations a test comparing “past annual
emissions” to “future annual emissions” — and not the
industry petitioners’ favored “maximum hourly emissions
rate” test. See 413 F.3d at 15 (citing Puerto Rican Cement
Co., 889 F.2d 292; WEPCo., 893 F.2d 901; 57 Fed.Reg.
32,314, 32,328 (July 21, 1992), and 67 Fed. Reg. 80,186,
80,199 (Dec. 31, 2002)). If, rather than simply forging ahead
with its Plant Modernization Program, Duke had sought an
applicability determination from EPA (the course followed
by the regulated entities in cases like Puerto Rican Cement
and WEPCo.), it could have filed a petition for review testing
EPA’s application of its regulations to particular facts
(though not the legality of the regulations themselves). See
Puerto Rican Cement, 889 F. 2d at 296-97, 299-300. Had
Duke challenged regulations or actions of “national”
applicability, its petition had to be filed in the D.C. Circuit.'®
What Duke could not lawfully do, under the statute, is what it
was allowed to do here: obtain invalidation of EPA’s
regulatory definition of PSD emissions “increase” in an
enforcement proceeding. See Adamo Wrecking Cos., 434
U.S. at 285; Puerto Rican Cement, 889 F.2d at 299-300.

'° Suits for review of EPA actions of local or regional applicability may be
filed in the regional court of appeals; however, as Puerto Rican Cement
illustrates, the validity of EPA’s national PSD rules would not have been
reviewable in such an action. 889 F.2d at 299-300. See also Section
307(b\(1) (exclusive D.C. Circuit review if EPA certifies that “local”
decision was “based on a determination of nationwide scope or effect” ).

20

This time Justice Stewart’s camel has appeared, not as a
nose, but as a camel. The Fourth Circuit’s ruling cuts a
gaping loophole in Section 307(b)’s carefully crafted scheme
for judicial review, and it merits this Court’s review.

Il. THE COURT OF APPEALS’ RULING THAT EPA
MUST ADOPT IDENTICAL REGULATORY
DEFINITIONS OF EMISSIONS “INCREASE”
UNDER THE NSPS AND PSD PROGRAMS IS
INCORRECT AND CONTRARY TO DECISIONS
OF OTHER COURTS OF APPEALS
Having overstepped Section 307(b) limitations on its

authority, the Fourth Circuit proceeded to misinterpret the

CAA. The court’s holding that Congress’s use of the same

statutory definition of “modification” in the PSD and NSPS

provisions “mandated” that EPA interpret an undefined
component of that larger definition — emissions “increase” —
must be “identically” (App. 14a) for the two programs
conflicts with decisions of other courts of appeals, and the

“effectively irrebuttable” (App. 17a) interpretive presumption

it employed is contrary to this Court’s oft-repeated teachings.
Since the earliest days of the PSD program, couris have

recognized that terms common to PSD and NSPS - including
component terms of the common statutory definition of

“modification” — can and should be given different definitions

to fulfill those programs’ distinct functions and aims. In

Alabama Power, the D.C. Circuit held that the term emissions

“increase” in the CAA’s definition of “modification” for PSD

— the very term at issue here -- can be interpreted differently

for those two programs. 636 F.2d at 401. Tha* court upheld

EPA’s use of a “bubble” concept (“netting”) in measuring

emissions increases for PSD, explaining that while ASARCO

Inc. v. Environmental Protection Agency, 578 F.2d 319 (D.C.

Cir. 1978), had held that “a bubble concept would be contrary

to the intent of the NSPS provisions,” such was “clearly not

the case with regard to the PSD provisions.” Alabama Power,

636 F.2d at 402. As the same court recently explained in New

21

York, EPA’s regulations have for decades rested on the
understanding that the agency can make _ reasonable
distinctions in its regulations governing NSPS and PSD
“modifications” to reflect significant differences between the
respective programs work. See 413 F.3d at 11-17, 18. See
also Citizens for Clean Air, 959 F.2d at 849 (“definitions of
the statutory terms are not necessarily transferable between
the PSD and NSPS programs”); WEPCo, 893 F.2d at 915
(“[uJnlike NSPS, PSD is concerned with changes in fotal
annual emissions, expressed in tons per year”).

The decision below conflicts with the D.C. Circuit’s
decision in New York in multiple respects. New York confirms
that, contrary to the Fourth Circuit’s theory, the PSD
regulation clearly establishes the actual, annual emissions
standard the Fourth Circuit believed it could “interpret” away.
413 F.3d at 18. And while the D.C. Circuit found that the
“identical regulatory definitions” theory adopted by the
Fourth Circuit had been waived, the court’s forceful rejection
of industry’s closely related argument (advanced by Duke in
this case) that Congress in 1977 had adopted NSPS
regulations embracing an hourly emissions rate test for use in
the PSD program, 413 F.3d at 19-20, is wholly incompatible
with the Fourth Circuit’s analysis here. The D.C. Circuit
observed that there were multiple regulatory definitions of
“modification” in place in 1977 when Congress added the
modification definition for PSD purposes, 413 F.3d at 19,
undercutting any notion that Congress intended to impose a
unitary, all-purpose regulatory definition covering both
programs. And, contrary to the Fourth Circuit, the D.C.
Circuit ruled that EPA not only may, but must, tailor its
regulatory test for PSD emissions increases to the distinctive
statutory requirements of the overall PSD program. See id. at
39-40 (PSD provisions, including definition of BACT,
obligate EPA to apply PSD “to changes that increase actual
emissions instead of potential or allowable emissions”).

The court of appeals misread Rowan, 452 U.S. 247, as
“dictat[ing]” the conclusion that Congress “affirmatively

22

mandated” that the term “modification” “be interpreted
identically” by EPA in implementing the PSD and NSPS
programs. 41] F.3d at 550. The court reasoned that the
“presumption” under Rowan was “effectively irrebut[t]able”
even by resort to acknowledged “differences between” the
“purposes” of the two statutory programs in which the two
definitions are found. Pet. App. 17a-18a.

Rowan does not, in fact, support that surprising principle.
In Rowan, the Court found that the use of nearly identical
language in defining the term “wages” in two revenue statutes
was “strong evidence” that Congress intended the term to
have identical meaning across them, and that Treasury had
failed to “implement the congressional mandate in a
consistent and reasonable manner.” 452 U.S. at 253, 255. It
did not treat Congress’s use of identical definitions as
dispositive, but relied on legislative history evincing a
specific congressional intent that the agency define the term
“wages” the same way in order to promote “simplicity and
ease of administration,” a goal ill-served by “[c]ontradictory
interpretations of substantially identical definitions.” 452 U.S.
at 255-57 (quoting S. Rep. No. 77-1631 at 165 (1942)). Here,
Congress expressed no intent that terms common to PSD and
NSPS be interpreted “identically” and without regard to
differences between the programs. To the contrary, Congress,
in separate enactments separated by seven years, inserted the
definitions of modification into two separate programs that, as
courts and EPA alike have repeatedly noted, have distinctly
different purposes and mechanics. See pp. 5, 17-18, supra.'!

'! In Rowan the Court noted that Treasury had abandoned its original
interpretation of the term “wages,” a “substantially contemporaneous
construction of the statute by those presumed to have been aware of
congressional intent.” may inform a court’s construction. 452 U.S. at 253,
258-59. By contrast, in PSD regulations enacted only a year after the
1977 amendments, EPA adopted a definition of modification that differed
from the NSPS definition. Compare 40 C.F.R. 52.21(b)(2) (1979) (PSD
modification requires increases above a threshold) with 40 C.F.R. 60.14(a)
(1979) (NSPS — no threshold). See also New York, 413 F.3d at 13-15.

23

This Court has rejected any “effectively irrebut[t]able”
presumption of the sort the Fourth Circuit invoked. It has
repeatedly emphasized that terms appearing in different
places in a statute — like the term “increases” in the CAA’s
NSPS and PSD provisions ~ necessarily gather meaning from
the different contexts in which they are used. See General
Dynamics Land Systems v. Cline, 540 U.S. 581, 595 (2001)
(“the presumption that identical words used in different parts
of the same act are intended to have the same meaning * * *
is not rigid and readily yields whenever there is variation in
the connection in which the words are used to warrant the
conclusion that they were employed in different parts of the
act with different intent’”) (citations omitted); United States
v. Cleveland Indian Baseball Co., 532 U.S. 200, 213 (2001)
(likening irrebuttable presumption of identical meaning to
“original sin”) (citation omitted). '*

The Fourth Circuit failed to heed these instructions,
relying instead on an abstract presumption favoring
regulatory identity despite “the different purposes of the
NSPS and PSD programs,” App. 18a, and giving no
consideration to how its abstract rule of “identity” would
affect the central elements of the PSD enactment (or the
NSPS provisions), nor to the reasons why EPA opted to use
an “actual annual” emissions test for PSD. Cf. New York, 413
F.3d at 22, 23-24 (noting that “[d]ifferent interpretations of

12 ‘As the court here observed (App. 4a, 9a), the cross-referenced PSD
definition of modification, 42 U.S.C. 7479(C), was added in “technical
and conforming” amendments, passed months after the main 1977 CAA
amendments, whose sponsor indicated the PSD modification definition
was proposed to “to conform” to the “usage in other parts of the Act.”
Pub. L. No. 95-190, § 14, 91 Stat. 1393, 1399-1404; 123 Cong. Rec.
36,250, 36,252, 36,331 (1977) (statement of Sen. Muskie). As the D.C.
Circuit noted in New York, Congress’s use of a cross-reference to
establishing the PSD definition was the equivalent of “having simply
repeated” in the PSD context “the definitional language used before in the
NSPS context,” revealing “no more than if Congress had used a little more
ink and repeated the NSPS definitions verbatim.” 413 F.3d at 19.

24

the term ‘increases’ may have different environmental and
economic consequences”).

The court of appeals’ embrace of an “effectively
irrebuttable” presumption obviating all need to look at
statutory context and purposes was fundamentally
inconsistent with this Court’s teachings on the “holistic
endeavor,” Koons Buick-Pontiac GMC y. Nigh, 125 S. Ct.
560, 566-67 (2004) (citations omitted), that is statutory
construction. This Court has repeatedly emphasized the need
to read statutory words “‘in their context and with a view to
their place in the overall statutory scheme,” Raygor v.
Regents of U. of Minnesota, 534 U.S. 533, 546 (2002)
(citations omitted), and in light of statutory purposes, see
Nixon v. Missouri Municipal League, 541 U.S. 125, 144
(2004) (“in all cases,” courts’ “task is to interpret the words of
[the statute] in light of the purposes Congress sought to
serve”); US Airways, Inc. v. Barnett, 535 U.S. 391, 397
(2002) (rejecting reading under which statute “could not
accomplish its intended objective”).

That the statutory test of modification is the same for both
NSPS and PSD programs did not answer the “precise
question at issue,” Chevron, 467 U.S. at 842, whether EPA
could adopt regulations implementing component terms in
that definition — here, the undefined and pivotal statutory
term, emissions “increase” — differently across the two
programs to accommodate real, explicit differences in the
programs’ legislatively prescribed mechanics and purposes.

Indeed, CAA provisions unique to the PSD program led
the D.C. Circuit in New York to rule that EPA must use an
“actual” emissions standard for measuring PSD emissions
increases. 413 F.3d at 38-40. The court there rejected, as
contrary to the language of the PSD statute (including the
definition of BACT), EPA’s use in the 2002 PSD regulations
of a “potential” emissions standard for measuring
“modifications” — the standard that the Fourth Circuit ruled is
statutorily required for PSD (because it is used in the NSPS
regulations). Other CAA provisions that are specific to the

25

PSD program support EPA’s decision to adopt a PSD
emissions increase test based on actual, annual emissions —
even if EPA chooses to use a maximum-hourly-rate test to
identify NSPS emissions increases. The fundamental purpose
of the PSD program is to regulate and protect local air quality,
42 U.S.C. 7470 — making it essential that any test of
emissions capture real-world changes in emissions. See
Alabama Power, 636 F.2d at 353 (statute requires “actual
emissions” standard); New York, 413 F.3d at 39-40 (CAA
forecloses emissions-increase test based on “potential or
allowable emissions”); 45 Fed. Reg. at 52680 (under 1980
regulations reductions, increases in emissions “will be
quantitatively assessed on the basis of an ‘actual emissions’
baseline, rather than a ‘potential to emit’ baseline”); id.
52699-52700 (discussing “actual, annual emissions” measure
for emissions increase). Numerous other provisions of the
PSD statute depart from the NSPS provisions in ways that
lend specific support to EPA’s “actual, annual” test, and
undermine any suggestion that Congress intended that EPA’s
regulations defining the statutorily undefined term, emissions
“increase,” be identical to regulations under the NSPS
program.”

The Fourth Circuit’s peremptory rule of identity led it to
disregard the consequences of the interpretation it adopted. A
test for emissions increases that is triggered only by increases
in maximum hourly emission rate artificially excludes from

'’ PSD applies only to “major sources,” a class defined by the ability to
emit specified pollutants in “tons per year,” 42 U.S.C. 7475, 7602(j), and
provides a limited exemption for the “expansion or modification” of an
existing facility whose emissions will be less than “fifty tons per year.”
Id. 7475(b). Major sources undergoing PSD review must demonstrate that
they will not violate an area’s “annual” increment, a showing that includes
the submission of “one calendar year” of monitoring data. /d
7475(d2X(C), (D). Under the Fourth Circuit’s approach, conventional
reliance on statutory context and structure was out of bounds, because
Congress’s choice of identical definitions for NSPS and PSD
“irrebuttably” prevailed despite any differences between the programs’
purposes or mechanics.

26

the “emissions increase” inquiry one of the three basic factors
— hours of operation — that (along with production rate and
emissions rate, see supra, pp. 7-8) determines how much
pollutant a source actually releases into the air. Whether or
not such a test fits with the NSPS provisions, it surely
undermines Congress’s purpose in subjecting “modifications”
to PSD review, disregarding as it does real, physical increases
in emissions of hundreds of tons and offering “vistas of
indefinite immunity,” see WEPCo., 893 F.2d at 909, to aging
facilities that Congress in 1977 expected would soon be
retired. Nothing in the CAA’s cross-referenced NSPS/PSD
definition of “modification,” or in Rowan, required such a
result.

Ill. THE CASE PRESENTS RECURRING ISSUES OF
NATIONAL IMPORTANCE

The decision below stands as a monument to why Congress
chose not to allow for challenges to EPA regulations in
enforcement proceedings: The Fourth Circuit set aside as
contrary to statute a regulatory test for emissions increases set
forth in 25-year-old regulations, and elaborated and applied in
WEPCo and Puerto Rican Cement. It announced a novel and
broad rule that the CAA demands uniformity between EPA’s
NSPS and PSD source modification regulations that conflicts
with Alabama Power and later decisions confirming EPA’s
authority to distinguish between NSPS and PSD in defining
emissions increases. The court did all this while the
regulations in question were before the D.C. Circuit in a
Section 307(b) review proceeding in which industry
challengers (including Duke) waived the argument adopted
by the Fourth Circuit. The court of appeals’ decision holding
unlawful EPA’s use of a PSD “actual, annual” test of PSD
emissions increases, and the statutory interpretation
underlying it, are starkly inconsistent with the D.C. Circuit’s
New York decision, and the ruling has prompted EPA to
initiate a rulemaking despite its continued disagreement with
the decision.

27

Left unreviewed, this extraordinary sequence will surely
invite litigants to try to circumvent Congress’s carefully
wrought and exclusive scheme of CAA review by presenting
challenges to EPA regulations in enforcement actions or other
district court proceedings.'* The Fourth Circuit’s willingness
to issue a broad ruling striking down venerable regulations
with only a perfunctory nod toward Section 307(b) will surely
invite and support future efforts at thinly veiled, piecemeal
collateral attacks on national CAA rules — just the result eight
members of the Court feared in Adamo Wrecking. And the
panel’s casual and legally inaccurate explanation that Section
307(b) somehow does not bar challenges to the
“interpretation” of regulations — a theory the panel elsewhere
appeared to disavow, App. Ila n.3 — provides a large-print
roadmap for such evasions.

The decision is all the more troubling because the judicial
review provisions of many other major environmental and
public health statutes are nearly identical to CAA Section
307(a), among them the Clean Water Act, 33 U.S.C. 1369(b);
the Oil Pollution Act, 33 U.S.C. 2717(a); the Safe Drinking
Water Act , 42 U.S.C. 300j-7; the Noise Control Act, 42
U.S.C. 4915(a); the Resource Conservation and Recovery
Act, 42 U.S.C. 6976(a); and CERCLA, 42 U.S.C. 9613(a).
The Fourth Circuit’s disregard for the bar on collateral attack
on EPA regulations will harm the various interests — from
EPA, to state air administrators, to environmental groups, to
business competitors - who should be able to rely on
adherence by litigants and courts to the exclusive mechanisms
provided for in CAA Section 307(b). This is particularly so
given the enormous time and expense that are invested in
jurisdictionally appropriate, multi-party review proceedings in
the D.C. Circuit that the Section 307(b) scheme fosters.

'* By allowing Duke to prevail on an argument it had waived in the
tribunal exclusively empowered by Congress to hear challenges to EPA
regulations, the ruling will tempt parties selectively to withhold from the
D.C. Circuit challenges they deem more viable in other fora.

28

The court of appeals’ reading of the CAA’s definition of
“modification” unsettles decades of judicial precedent and
administrative policy and practice built around the
recognition that EPA may make reasonable distinctions in its
implementation of the component terms of the statutory
“modification” definition. The court of appeals’ broad and
categorical requirement of identity between the NSPS and
PSD regulations will be invoked as a basis to restrict EPA’s
flexibility to administer the PSD and NSPS programs in the
future.'° And the court’s misreading of Rowan to create an
“effectively irrebuttable” presumption so powerful as to
foreclose inquiry into statutory context or purpose, or
empirical consequences, threatens mischief even beyond the
important questions of environmental law presented here.

The profound implausibility of the Fourth Circuit’s
reading of the statute, and the likelihood that it will foster
further litigation, are apparent in EPA’s recent notice of
proposed rulemaking. There, EPA acknowledged that even
its proposed regulations will be inconsistent with the
regulatory “identity” requirement the Fourth Circuit found in
the CAA’s plain language, but insisted that “[t]here are
differences between the two programs that prevent a
wholesale adoption of the NSPS modification definition into
the major NSR provisions.” 70 Fed. Reg. at 61090."°

'* The validity of the “actual, annual” test will retain considerable
importance regardless of whether EPA proceeds with its proposal to
amend its regulations in response to the decision — since any new
regulations would be prospective and would not apply to numerous major
enforcement proceedings that are pending. U.S v. AEP, Consol. Nos. C2-
99-1182 and C2-99-1250 (S.D. Ohio filed June 28, 2005); U.S. v. Cinergy,
No. 99-C-1693 (S.D. Ind. filed Nov. 3, 1999); U.S. v. Alabama Power,
No. 01-152-VEH (N.D. Ala. filed Jan. 12, 2002); U.S. v. East Kentucky
Power Coop., No. CV-04-34 (E.D. Ky. filed January, 2004).

'° EPA cited various ways in which the NSR/PSD and NSPS programs
differ, and added (70 Fed. Reg. at 61090 n.30): “We disagree with the
Fourth Circuit’s holding in Duke Energy, and thus believe we are able to
make reasonable distinctions between the NSPS and NSR programs where

appropriate.”

29

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.
JEFFREY M. GLEASON SEAN H. DONAHUE*
J. BLANDING HOLMAN, IV 2000 L St., NW
CALEB JAFFE Suite 808
Southern Environmental Washington, D.C. 20036
Law Center (202) 466-2234

200 W. Franklin Suite 330
Chapel Hill, N.C. 27516
(434) 967-1450

VICKIE PATTON DAVID T. GOLDBERG
Environmental] Defense 99 Hudson St., 8th Floor
2334 North Broadway New York, N.Y. 10013
Denver, Colorado 80304 (212) 334-8813

(303) 447-0987

*Counsel of Record Counsel for Petitioners

30

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0237%3A02. Public record. Not legal advice.