# Amicus Curiae Brief — Environmental Defense v. Duke Energy Corporation > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0237%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2007 - **Citation:** 549 U.S. 561 ## Text will occur by comparing actual emissions prior to the change with its projection of what annual emissions will be after the change, but only if it reports to EPA on its post-project emissions. 57 Fed. Reg. 32314, 32335 (July 21, 1992)(adding 40 C.F.R § 51.166(b)(21)(v)). This special test, (the “actual-to-projected-actual test”) has no application in this case because at the time most of the projects occurred, the rule change was not incorporated into the North Carolina and South Carolina SIPs. Furthermore, Duke Energy never reported on its post-project emissions, so it could not benefit from the rule’s provisions in any event. Whether the “actual emissions” definition, 40 C.F.R § 51.166(b)(21), is interpreted as imposing an “actual-to-potential” test, or an “actual-to-future-actual” test is, for the purposes of this case, irrelevant.‘ Both tests compare annual emissions before and after a project; the regulatory language does not support an interpretation yielding an hourly emissions test. See 40 C.F.R § 51.166(b)(21)(1i)(“[A]ctual emissions . . . shall equal the average rate, in fons per year, at which the unit actually emitted the pollutant . . . .”). The Fourth Circuit, as mentioned above, never discussed the actual language of the regulations, but the district court did, finding that an exception contained within the definition of “major modification,” 40 C.F.R § 51.166(b)(2)(iii)(f), (the “increased hours” exclusion) imposes, despite the language set forth above, the hourly emissions test. Pet. App. 72a. The language focused upon by the district court is as follows: (2)(i)*Major modification” means any physical change in or change in the method of operation of a major stationary * EPA was prepared to proceed in the case using the actual-to- projected-actwal test. Pet. App. 58a, n. 17. 8 source that would result in a significant net emissions increase of any pollutant subject to regulation under the Act. (ii) Any net emissions increase that is significant for volatile organic compounds shall be considered significant for ozone. (iii) A physical change or change in the method of operation shall not include: (a) Routine maintenance, repair, and replacement; (b) Use of an alternative fuel or raw material by reason of any order under sections 2 (a) and (b) of the Energy Supply and Environmental Coordination Act of 1974 (or any superseding legislation) or by reason of a natural gas curtailment plan pursuant to the Federal Power Act; (c) Use of an alternative fuel by reason of an order or rule under section 125 of the Act; (d) Use of an alternative fuel at a steam generating unit to the extent that the fuel is generated from municipal solid waste; (e) Use of an alternative fuel or raw material by a stationary source ... ; (f) An increase in the hours of operation or in the production rate, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975, pursuant to 40 CFR 52.21 or under regulations 9 approved pursuant to 40 CFR Subpart I or 40 CFR 51.166. 40 C.F.R § 51.166(b)(2)(emphasis added). The district court ruled that the “increased hours” exclusion required “that in calculating post-project emissions, the EPA must hold the pre-project and post-project hours and conditions of operation constant.” Pet. App. 72a. The cistrict court’s analysis was incorrect. As mentioned above, the “modification” test has two elements. First, a source must determine whether a physical or operational change will occur. 40 C.F.R. 51.166(b)(2)(i). Second, if so, the source must determine whether that change will result in a significant net emissions increase. /d. By its explicit terms, the “increased hours” exclusion applies at the first step of the analysis, not the second step. Furthermore, the definition of “net emissions increase,” 40 C.F.R. § 51.166(b)(3)(i), analyzes whether “a particular physical change or change in the method of operation” at a source has increased emissions. A project that falls within the “increased hours” exclusion could never qualify as the type of “change” that subsection (b)(3)(1) addresses. To put it another way, if the “increased hours exclusion” applies to a project, it would be unnecessary to go on and conduct the “emissions increase” analysis because the activity in question would have already been found exempt. Thus the plain language of the regulations does not support a conclusion that the “increased hours” exclusion affects the calculation of a “net emissions increase.” As the court said in United States v. Cinergy Corp., 384 F. Supp. 2d 1272, 1278 (S.D. Ind. 2005): “the plain meaning of the increased hours exclusion is that an increase in hours or production rate are noi a ‘physical change’ and thus cannot, alone, be a modification. 10 Increased hours and production rate are not excluded from the definition of ‘modification’; that is, if a physical change results in an increase in hours of operation that causes a net emissions increase, a modification has occurred.” Accordingly, what the Fourth Circuit should have done in this case is determine, by carefully reading the regulations, whether the district court’s interpretation of the regulations was correct. Instead, the Fourth Circuit failed to “interpret” the regulations at all. Instead, it examined whether the regulations comported with its view of what the statute required, and that type of review was reserved by Congress for the D.C. Circuit, which upheld the regulations in the New York case, 413 F.3d 3. c. ALLOWING A COLLATERAL ATTACK OF AN ENVIRONMENTAL REGULATION IN THE CONTEXT OF AN ENFORCEMENT ACTION WOULD UNDERMINE THE ENFORCEMENT SCHEME OF MANY ENVIRONMENTAL STATUTES. Allowing the type of collateral attack on the regulations that occurred in this case would not only undermine the Clean Air Act’s enforcement scheme, but similar restrictions on judicial review established by Congress in many other environmental statutes. Examples abound: * Indeed, if the hours-of-operation exclusion were interpreted to include increases in hours of operation that resulted from actual physical modifications, it would lead to the following anomalous result: if a project made physical changes to a source that increased the source’s capacity to produce in any particular hour, but did not increase the source’s availability to operate more hours, then that project would trigger PSD, but if the project increased both capacity and availability, it would not. 1] * (Clean Air Act. 42 U.S.C. § 7607(b)(1) provides in pertinent part (emphasis added) that: A petition for review of action of the Administrator in promulgating any national primary or secondary ambient air quality standard, any emission standard or requirement under section 7412 of this title, any standard of performance or requirement under section 7411 of this title, any standard under section 7521 of this title (other than a standard required to be prescribed under section 7521(b)(1) of this title), any determination under section 7521(b)(5) of this title, any control or prohibition under section 7545 of this title, any standard under section 7571 of this title, any rule issued under section 7413, 7419, or under section 7420 of this title, or any other nationally applicable regulations promulgated, or final action taken, by the Administrator under this chapter may be filed only in the United States Court of Appeals for the District of Columbia. ... 42 U.S.C. § 7607(b)(2) provides in pertinent part that: Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial review in civil or criminal proceedings for enforcement. . . . Applying these provisions, the Third Circuit, in the context of acriminal proceeding for violations of asbestos removal work practice standards, refused to entertain an argument that the regulation was invalid. See United States v. Ho, 311 F 3d 589, 607 (Sth Cir. 2002), cert. denied 539 U.S. 914, 123 S. Ct. 2274 (2003). See aiso Getty Oil Co. (Eastern Operations), Inc. v. Ruckelshaus, 467 F.2d 349, 12 359 (3rd Cir. 1972), cert. denied, 409 U.S. 1125 (1973) (“Failure to utilize the section 307 proceeding forecloses review in a civil or criminal proceeding for enforcement.”); Commonwealth of Virginia v. United States, 74 F.3d 517, 525 (4th Cir. 1996)(“Because Congress wanted prompt and conclusive review in air quality controversies, it channeled (to the courts of appeals) all challenges, regardless of their basis, of EPA rules and final actions.”); Madison Gas & Electric v. U.S. E.P.A., 4 F.3d 529 (7th Cir. 1993) (Challenge to national feature of acid rain program, such as tradability of emission allowances, may be brought only in Court of Appeals for the District of Columbia Circuit, even if impact of program varied greatly across the country). Clean Water Act. 33 U.S.C. § 1369(b)(2); see Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1313 (9th Cir. 1992)(“Reviewability under section 1369 carries a peculiar sting.... If an EPA action is reviewable under section 1369(b)(1), then it “shall not be subject to judicial review in any civil or criminal proceeding for enforcement.” 33 U.S.C. § 1369(b)(2).”); see also American Paper Inst., Inc. v. EPA, 882 F.2d 287, 288-89 (7th Cir. 1989)(“the Clean Water Act bars review in enforcement proceedings of actions that could have been reviewed earlier”); Natural Resources Defense Council, Inc. v. Outboard Marine Corp. 702 F. Supp. 690, 693 (N.D. Ill. 1988)(“Section 1369(b)(1)(F) permits review of an EPA action issuing or denying a permit only in the Circuit Court of Appeais. Section 1369(b)(2) then expressly bars review of an EPA-issued or EPA-denied permit in any District Court enforcement proceeding.”); Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9613(a); see U.S. Ecology, Inc. v. Carlson, 638 F. Supp. 513, 518-19 13 (C.D. Ill. 1986)(challenge to a listing on the National Priorities List can only be brought in the D.C. Circuit); * Toxic Substances Control Act (“TSCA”), 15 U.S.C. § 2618(a); see Dow Chemical Co. v. Costle, 484 F. Supp. 101, 104 (D. Del. 1980)(court ruled it had no jurisdiction because, although chemical company claimed it was challenging interpretation and application of regulation imposing a ban on manufacture, it was in fact challenging validity of regulation itself); * Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6976(a)(2); * Safe Drinking Water Act, 42 U.S.C. § 300j-7(a). In statute after statute, Congress has consistently established a sensible system for judicial review. Challenges to regulations must be brought in the D.C. Circuit, and usually within 90 days of promulgation. Enforcement actions are not to be hindered by such challenges. The Fourth Circuit’s decision upsets this carefully crafted system for the administration of justice. D. THE OUTCOME IN THIS CASE COULD HAVE BROAD IMPLICATIONS ON THE AIR QUALITY IN THE NATION’S NATIONAL PARKS. The nation’s national parks are threatened by air pollution. A report issued by the amici NPCA and OCE, along with another organization, Appalachian Voices, details the damage being caused throughout the park system by air pollution focusing on Great Smoky Mountains National Park, Shenandoah National Park, Mammoth Cave National Park, Sequoia and Kings Canyon National Parks, and Acadia 14 National Park. See National Parks Conservation Ass’n, et. al, “Code Red: America’s Five Most Polluted National Parks” (September 2002).° This report focuses on three types of impact: haze, ground level ozone, and acid precipitation. /d. at 1. The nation’s parks are suffering these injuries even though Congress sought to remedy the air pollution problem in parks almost 30 years ago with the Clean Air Act Amendments of 1977. Pub. L. 95-95, 91 Stat. 685 (1977). This Act granted special protections to National Parks. See 42 U.S.C. § 7472 (designating national parks over 6000 acres in size as Class | areas) and 42 U.S.C. § 7475(d) (requiring additional measures to insure that new and modified sources seeking permits under the PSD program do not adversely impact Class | areas). deed, the Act contains an entire program dedicated to proving and protecting visibility in Class I areas. 42 U.S.C. §§ 7491-92. Twenty-nine years ago, Congress stated: “[the} visibility problem is caused primarily by emission into the atmosphere of sulfur dioxide, oxides of nitrogen and particulate matter, especially fine particulate matter, from inadequate(ly] controlled sources.” H.R. Rep. 294, 95" Cong. (1977), at 204, 1977 U.S.C.C.A.N. 1077, 1283 (1977). According to the National Research Council, emissions of sulfur oxides from electric utilities “alone are responsible for slightly more than one-half of anthropogenic light extinction. This is because sulfates are the predominant component of anthropogenic haze in the East and electric utilities are the predominant emitter of * Available at: http://www. t ion/ visitor_experience/code_red/codered.pdf (last visited March 5, 2005). 15 SO, (sulfur dioxide) in the East. National Research Council, “Protecting Visibility in National Parks and Wilderness Areas” (1993), at 216. Although EPA has recently developed two rulemakings to curb park-harming emissions from power plants, the Regional Haze Rule, 64 Fed. Reg. 35714, (July 1, 1999) and 70 Fed. Reg. 39104 (Regional Haze Regulations and Guidelines for Best Available Retrofit Technology (BART) Determinations), and the Clean Air Interstate Rule (“CAIR”), 70 Fed. Reg. 25162 (May 12, 2005), those rules do not supersede the New Source Review rules, and they do not take effect until 2015. See 70 Fed. Reg. 39145 (2005). As Congress debated the 1977 Amendments to the Clean Air Act, it believed that old, uncontrolled plants were being phased out: There are in the United States approximately 200 old coal-fired power plants over 20 years of age. These plants are moving into the second half of their useful service life. They are operating at reduced capacity factors--some are used on cyclical or peaking loads only and most operate at less than 50 percent of their stated capacity. They are typically among the most expensive units to operate on a system. Most will be totally phased out of operation in the next 5 to 20 years. S. Rep. No. 127, 95" Cong. (1977), at 128 (Statement of Senator Baker). Thus, as the D.C. Circuit noted in 1980: Implementation of the statute’s definition of “modification” will undoubtedly prove inconvenient and costly to affected industries; but the clear language of the statute unavoidably imposes these costs except for de 16 minimis increases. The statutory scheme intends to “grandfather” existing industries; but the provisions concerning modifications indicate that this is not to constitute a perpetual immunity from all standards under the PSD program. If these plants increase pollution, they will generally need a permit. Exceptions to this rule will occur when the increases are de minimis, and when the increases are offset by contemporaneous decreases of pollutants. .. .” Alabama Power Co. v. Costle, 636 F.2d 323, 400 (D.C. Cir. 1980); see also Ohio Edison, 276 F. Supp. 2d at 850 (“Congress chose to ‘grandfather’ existing pollution sources from the NSPS and NSR provisions at the time the statute was enacted... . Congress did not, however, intend that such existing sources be forever spared the burden and expense of installing pollution control devices.”). This case and others filed by the Department of Justice and citizens seek to bring into compliance sources that have attempted to evade New Source Review requirements on a massive scale. In 1999, along with this case, the Department of Justice filed actions against six other utility companies covering 17 power plants. U.S. Department of Justice, U.S. EPA, “U.S. Sues Electric Utilities in Unprecedented Action to Enforce the Clean Air Act,” press release, November 3, 1999.’ At that time, EPA issued administrative orders and notices of violation covering an additional 15 plants. Jd. EPA and the Department of Justice estimated that the failure of the identified utilities to comply with the New Source Review regulations had “resulted in tens of millions of tons of sulfur dioxide, nitrogen oxides, and particulate matter illegally emitted into the air.” /d. ” Available at: http://www.usdoj.gov/opa/pr/1999/November/ 524enr.htm (last visited March 5, 2006). 17 Given the seriousness of the air pollution problems in the national parks caused by power plants and other industrial sources, and given the allegations by EPA and the Department of Justice of violations of the New Source Review Regulations by the utility sector, amici urge the Court to grant review of the Fourth Circuit’s decision. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. GEORGE E. Hays* 236 West Portal Avenue # 110 San Francisco, CA 94127 (415) 566-5414 MICHAEL COSTA Our Children’s Earth Foundation 100 First Street, Suite 100-367 San Francisco, CA 94105 (415) 896-5289 *Counsel of Record March 8, 2006 (2) No. 05-848 | IN THE Supreme Court of the United States ~~ ENVIRONMENTAL DEFENSE, NORTH CAROLINA SIERRA CLUB, and NORTH CAROLINA PUBLIC INTEREST RESEARCH GROUP CITIZEN LOBBY/EDUCATION FUND, Petitioners, y DUKE ENERGY CORPORATION, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNitep STATES CouRT OF APPEALS FOR THE Fourtu CIRCUIT BRIEF OF THE STATES OF NEw YorK, CALIFORNIA, CONNECTICUT, DELAWARE, ILLINOIS, MAINE, MARYLAND, MASSACHUSETTS, Minnesota, New Hampsuire, New Jersey, OKLAHOMA, AND VERMONT, THE DistRICT OF COLUMBIA, AND THE COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION AS Amict CURIAE IN SUPPORT OF THE PETITION Peter H. LEHNER Eviot Spitzer Chief, Environmental Attorney General of the Protection Bureau State of New York CaItLin J. HALLIGAN* ROBERT ROSENTHAL Solicitor General J. JarED SNYDER DANIEL SMIRLOCK Assistant Attorneys General Deputy Solicitor General 120 Broadway New York, NY 1027 (212) 416-8016 * Counsel of Record Attorneys for Amici Curiae (Additional Counsel Listed on Signature Pages) 199844 cr COUNSEL PRESS (M040) 274-3321 + (ROO) 359 O8S9 TABLE OF CONTENTS TABLE OF CITED AUTHORITIES ..........-. ii INTEREST OF THE AMICI CURIAE ........... l SUMMARY OF ARGUMENT ............-205- 5 ARGUMENT ........-...0cceeececeeeceewes: 6 I. THE FOURTH CIRCUIT’S DECISION CONFLICTS WITH DECISIONS OF OTHER COURTS OF APPEALS AND OF THIS COURT ON A MATTER OF PUBLIC ter 6 A. The Fourth Circuit’s Decision Conflicts With New York v. EPA, In Which the D.C. Circuit Upheld the 1980 PSD Emissions Test Effectively Invalidated by the Court I i ale Fee ee Le oe ohne 6 B. The Fourth Circuit’s Decision Conflicts With the Decisions of Several Other Courts That Have Recognized The Differences Between the Emissions Tests under NSPS and PSD. .............. 7 C. The Fourth Circuit’s Decision 1s Contrary to Chevron and Alabama Power, Which Allow EPA to Interpret a Statutorily- Defined CAA Term Differently in the NSPS and NSR Regulations. ......... ) i Contents Page ll. THE PETITION SHOULD BE GRANTED TO PROMOTE THE INTERESTS IN CERTAINTY AND UNIFORMITY UNDERLYING CAA SECTION 307(b)(2). il TABLE OF CITEDAUTHORITIES Page CASES ASARCO Inc. v. EPA, > fe Bo le re ere 10, 12 Adamo Wrecking Co. v. United States, TR Ry 1) ee ere 13 Alabama Power v. Costle, 636 F.2d 323 (D.C. Cir. 1979) ...........5,9, 11, 12 Alaska Department of Env. Conservation v. EPA, Ee | TTT Tee ee ee |-2 Allegheny Energy Supply Co. LLC v. Spitzer, No. 1:05cv04 (N.D.W.Va.) .........002 ee eee 4 Chevron U.S.A. Inc. v. NRDC, jg i? Spt). re Se New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005) reh'g and reh'g en banc denied, a: oe UK Pere. Pennsylvania v. Allegheny Energy Inc.. 2005 U.S. Dist. LEXIS 28894 (W.D. Pa. 2005) .. 3 Puerto Rican Cement Co. v. EPA, ie & of lo Se Sr Mp Fe iv Cited Authorities Page Rowan Cos. v. United States, GOS UW. BUT CHOP 6c oc kccdccccccccuceacuce 12 United States v. American Electric Power Serv. Corp. (“AEP”), 137 F. Supp. 2d 1060 (S.D. Ohio 2001) ........ 3 United States v. Cinergy Corp., 384 F. Supp. 2d 1272 (S.D. Ind. 2005) ......... 3,8 United States v. Duke Energy, 411 F.3d 539 (4th Cir. 2005) reh'g en hanc denied, _F58 _ (Amm, 30, 2008) on ccc ccccccss 3 United States v. Ethyl Corp.., 761 F.2d 1153 (Sth Cir. 1985), cert. denied sub nom. Firestone Tire & Rubber Co. v. United States, 474 U.S. 1070 (1986) .. 2... ccc ccc ccc eeee 13 United States v. Ohio Edison Co.., 276 F. Supp. 2d 829 (S.D. Ohio 2003) ......... 8 Wisconsin Electric Power Co. v. Reilly (“WEPCo”), 893 F.2d 901 (7th Cir. 1990) .. 00000020200... 5,7,8 Vv Cited Authorities FEDERAL STATUTES United States Code (“U.S.C.”) 33 U.S.C. 42 U.S.C. 42 U.S.C. 42 U.S.C. 42 U.S.C. 42 U.S.C. 42 U.S.C. 42 U.S.C. 42 U.S.C. 42 U.S.C. 42 U.S.C. 42 U.S.C. 42 U.S.C. 42 U.S.C. Page PEED evccctcvccccceveceesess 14 DB RPPEEED cccccccccccvccoescce 15 DEEPENED ncccccccevcesscoesees 15 DET icvucesebaceeesee se we 8 DEED scckeeessvvececessnces 10, 12 PD owedecdbeeererecns ce l DU sbnddned