Amicus Curiae Brief — Environmental Defense v. Duke Energy Corporation

Supreme Court brief2007

Ask Donna

What actually matters in this document.

Text

FILED

gy SEP 15 2006

No. 05-848 | SGPweme EME COUR cate )

In the

Supreme Court of the Anited States

ENVIRONMENTAL DEFENSE, ET AL.,

Petitioners,

Vv.

DUKE ENERGY CORPORATION, ET AL.,

Respondents.

’

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF OF THE STATES OF ALABAMA, ALASKA,

COLORADO, INDIANA, KANSAS, NEBRASKA,

SOUTH CAROLINA, SOUTH DAKOTA, VIRGINIA, AND

WYOMING, AND THE STATE OF WEST VIRGINIA

DEPARTMENT OF ENVIRONMENTAL PROTECTION, AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

Olivia Rowell Troy King

General Counsel Attorney General

ALABAMA DEPARTMENT OF Kevin C. Newsom

ENVIRONMENTAL MANAGEMENT Solicitor General

1400 Coliseum Blvd. Counsel of Record”

Montgomery, Alabama 36110

(334) 271-7858 Robert D. Tambling

Chief, Environmental Division

STATE OF ALABAMA

Office of the Attorney General

11 South Union Street

Montgomery, Alabama 36130

September 15, 2006 (334) 242-7401

(Additional counsel for amici curiae are listed inside the front cover.)

a nee ee en ne a eae en

ADDITIONAL COUNSEL

DAVID W. MAi.QUEZ

ATTORNEY GENERAL

STATE OF ALASKA

P.O. Box 110300

~ Juneau, AK 99811

JOHN W. SUTHERS

ATTORNEY GENERAL

STATE OF COLORADO

1525 Sherman Street

5th Floor

Denver, CO 80203

STEVE CARTER

ATTORNEY GENERAL

STATE OF INDIANA

302 W. Washington Street

Indianapolis, IN 60601

\ PHILL KLINE

ATTORNEY GENERAL

STATE OF KANSAS

120 S.W. 10th Avenue

Topeka, KS 66612-1597

JON BRUNING

ATTORNEY GENERAL

STATE OF NEBRASKA

2115 State Capitol

Lincoln, NE 68509-8920

HENRY D. MCMASTER

ATTORNEY GENERAL

STATE OF SOUTH

CAROLINA

P.O. Box 11549

Columbia, SC 29211

LAWRENCE E. LONG

ATTORNEY GENERAL

STATE OF SOUTH DAKOTA

1302 E. Highway 14

Suite 1

Pierre, SD 57501-8501

ROBERT F. MCDONNELL

ATTORNEY GENERAL

COMMONWEALTH OF

VIRGINIA

900 EAST MAIN STREET

RICHMOND, VA 23219

PATRICK J. CRANK

ATTORNEY GENERAL

STATE OF WYOMING

123 State Capitol

Cheyenne, WY 82002

STEPHANIE R.

TIMMERMEYER

CABINET SECRETARY

STATE OF WEST VIRGINIA

DEPARTMENT OF ENVI-

RONMENTAL PROTECTION

601 57th Street

Charleston, WV 25304

QUESTIONS PRESENTED

1. Whether the Clean Air Act’s provision for expedited

judicial review of “final action” promulgated by EPA, 42

U.S.C. §7607(b), stripped the courts below of authority to

consider a new interpretation of EPA’s 1980 New Source

Review rules that was developed and imposed in an en-

forcement action initiated in 1999; and

2. Whether EPA unlawfully interpreted its New Source

Review rules to convert existing electric generating plants

into “new sources,” even though those plants had not

undergone “modifications” as that term has been defined

and used for decades under those rules and under the Act.

TABLE OF CONTENTS

SEOs CIEE ND cecsecsccesscncvssespesoscmssveneesssnentusneernasinciote i

CE FT EINE BD scicicesenceestecciciidnientinceamneainnteantattiont iv

| + SR oe re NN 1

SUMMARY OF THE ARGUMENT.............s:scsccssssssseeseesneneneeees 1

IL EPA’s Current Litigating Position Is Not

Entitled to Deference, Particularly Given EPA’s

Consistent Endorsement of State Agencies’

Longstanding PSD Interpretations to the

Ci ictinescintnsnstnecpensintgsdunintitossiniliaintinctnindsimentincingniniaien 4

A. EPA Has Consistently Blessed State-Agency

PSD Interpretations Contrary to the One It

FOUUE POIRIER, picstescvcscscicennesintncapiteneinanintmnanincnesoeensees S)

B. EPA’s Own Pronouncements Concerning

the PSD Rule Have Been Frightfully

BRD UIIIIIIIINE, ccc cccnsseceosionsqcapetaptansivaneancemeanniemignmesnmesces 10

Il. EPA’s Litigating Position Undermines the

Clean Air Act's Carefully Calibrated State-

Federal Enforcement Scheme............:csssssssssessesesesnsnseesseees 14

A. Under EPA’s Litigating Position, the

Exception of Federal Intervention Would

Swallow the Rule of State Control.............0::seseesserees 15

B. There Is a True Federalism-Respecting

Solution Here: If a State Wants Stricter

New-Source Controls, It Should Simply

RCE TIGR, .cccxccssecsssaresssecscersnesasstesscsepnevesnepnensseseees sone ED

II. EPA's Litigating Position Has No Basis in the

Real-World Practicalities of Clean-Air

ili

IV. EPA’s Litigating Position Has Fundamental

Drawbacks Even as a Matter of Environmental

Ps davicnsencisdanencecnrippesesnnttigniesnniacbantenisnephinteastteaepnecesseats 24

V. Section 307(b) Does Not Preclude Enforcement-

Proceeding Targets From Defending by

Challenging EPA’s. Application of Clean Air

FOE i accrcntinninensinnicciveniacaniesnesiiceninepeaansentsinlanietetanuiecneasiie 28

TABLE OF AUTHORITIES

Cases

Adamo Wrecking Co. v. United States, 434 US. 275

GPR ncnnipssoceesoansanenvesseninrpuatnaneorencsniresninannntariprasinistsennnsiansiyh 30

Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461

IIE) nxcececincactossncvenqescnecssectesspesneniccnnionnseeneeivinanasiitnasetia passim

Alaska Prof! Hunters Ass’n v. FAA, 177 F.3d 1030

CA, Ce, BaD) -nnccersescimnsivinnenieetaitwnseeniascnasnmnavinntniovintetnaisi 13

Bennett v. Spear, 520 U.S. 154 (1997)........scsssssssesssessssesesreneneeees 29

Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988)............ 13

Caruso v. Blockbuster-Sony Music Entertainment Centre

at the Waterfront, 193 F.3d 730 (3d Cir. 1999)........0..00s0000+s 13

Chevron, U.S.A., Inc. v. NRDC, 467 US. 837 (1984)............00-+. 13

Good Samaritan Hosp. v. Shalala, 508 U.S. 402 (1993) ..........0+«. 13

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)........0---secssescerseres 13

New State Ice Co. v. Liebmann, 285 U.S. 262 (1932)............ 19, 20

New York v. EPA, 443 F.3d 880 (D.C. Cir. 2006)........0.2+0+: 18, 28

North Haven Bd. of Educ. v. Bell, 456 U.S. 512 (1982)...........+++. 13

Paralyzed Veterans of America v. D.C. Arena, 117 F.3d

FFD. e. WOGF) .cccepeesnectaserecetectapivennenitacinagsincinesniesonstiets 13

Rodriguez v. United States, 480 U.S. 522 (1987)......-.-..sesereresenes 26

Train v. NRDC, 421 U.S. 60 (1975)......2-cceceseresererenenssenensess 16,17

Union Elec. Co. v. EPA, 427 U.S. 246 (1976) .......0-vcrerereereeee 16, 20

United States v. Alabama Power Co., 372 F. Supp. 2d

1283 (N.D. Ala. 2005)........---sessessssssssserssnsesssesenessensesnseess 6, 13

United States v. Duke Energy Corp., 278 F. Supp. 2d 619

ETE L,, TRGB) sccccrnccsevnstnesnceensencattonrmemancsinestiasstneatsianens 11,12

United States v. Georgia-Pacific Corp., No. 1 96-CV-

1818-FMH (N.D. Ga. July 18, 1996) ...ccescssscesnessneesneene 18

United States v. Lopez, 514 U.S. 549 (1995) ..........sesecsesesrenseeneees 19

Whitman v. American Trucking Ass’ns, 531 U.S. 457

GED cxensevernterennatnssecivaseicandeshmsmnannunasdigutensumnemndnussbemngutenntnteses 29

Wisconsin Elec. Power Co. v. Reilly, 893 F.2d 901 (7th

ae ee arabrerersisnneputetesivaheiennapiecepitmnieranciomncbeipeiaterinnnadaiens 11

Statutes

ie ON ie cininitncernshcseenneininteinienmnpiontgnininennatentneinantte 15

as terete toctncecpemnentennssttesescantenteecznaniovensmnanstensennenien 15

aN orcinctpncnctinincncentiesbsipsanasseiianiniiinininennianenasnibinigtedgesnmaniont 15

See SI cntictripsiceretuinstmnsnansndinincteinsasiininiasstintincschecens 15, 16

eee I arinctinctptocencntinanrprinninibicnecinnntistecimntatncenneeniinne 10

GEREN oe dea era oe 10

aN IE iin chp cheaectotincsiaenenticncsigpbiviatinianpestiontminingnentedtans 16

ne UI tbe etieecntentetpcicinsnsectennieanreecesenemnntnionanchnsuntesenanee 20

ea EP sinidhctncpnlincninipnciennninianntnntntenannnntnajnensinginivanennnsmin 22

SEC Ee 23

ee TE rtrin dips eseriechnsinibedectbinieminlitaeeumbeetehoqnnnntiennh 25

gE sche tochs cicercicnncninnsseceneneiutnipetntncertensbuibintacinnssstetsnags 9

ea cictestncicternprtniicincinpeiatsenatitantinnianiecininngs 17, 25

aes Gr ettecgrepencerenecstncteinnivinercemnasienasstcsniesstanssnnessstes 17

als rth cciniinhnctineninescrnipnnninnecntingmatnsnantticeninnten i, 28

a ee I rerctnceccerestnicncnnesncticunscecntincneentesinctetnscennn 26

a re I cic dectriacnsncennsinchsscpneehssinsiinsnssicnamtincenensioe 26

Mid. Code. Arm. §2-1001 et 569 ............ccsceccsssssesssesssesesenssscensesees 21

N.C. Gen. Stat. §143-215.107D(b)-(d)..............sccesecreenesecneeneneees 20

Regulations

40 C.F.R. §51.166(b)(21) & ()(32) (1993) 020... ececsecseeneneenennees 12

SK, Fi I ccccrtrrenseeenntntipncteinnirnseer. cantguincmtpinsiiols 7

45 Fed. Reg. 52,676 (Aug. 7, 1980) (codified at 40

oe, eT 4

46 Fed. Reg. 55,517 (Dec. 10, 1981) (codified at 40

i ED crcenisstnnpnicnencitensccnntenpsqnccecicentesientivivintiet 5-6

47 Fed. Reg. 6017 (Feb. 10, 1962) ..nu........0.0.....-csasesccsoserscseeesesees 8

47 Fed. Reg. 7836 (Feb. 23, 1982) .............eccssssssecsssvssecesarsesscesssees 8

63 Fed. Reg. 39,857 (July 24, 1998) ............ceccccsssesssesnessnnsneens 12

67 Fed. Reg. 80,186 (Dec. 31, 2002).............cccsssseseesssensseeseaserens 12

68 Fed. Reg. 61,248 (Oct. 27, 2003) ...........ccccscsesseeeseeees 18, 27, 28

70 Fed. Reg. 61,081 (Oct. 20, 2005) .........--..ccccceceseeeseeees 24, 27, 28

Other Authorities

EE 16

RG Contam, Ge, TD CI cercrcccecersrnsrncsseenenqernernemennntamentante 17

Joint Hearing on NSR Issues Before the Senate

Environment and Public Works Comm. and the

Senate Judiciary Comm., 107th Cong. (July 16, 2002)..12, 13

Alabama Power Co. Petition for Adjustment of Rate

CNP, Order at 1, Docket Nos. 18117, 18416 (Nov.

Bae rte canansceninnsecnnansssintpetseneinesaieampanciatenpitininientpngeintenbnintie 25

Alabama Power Co. Petition for Revised Rate ECR

Factor, Order at 1, Docket No. 18148 (Dec. 15,

vii

Maryland Department of the Environment,

Maryland Clean Power Rule: Frequently Asked

Questions, www.mde.state. md.us/ Air/md_cpr.

Sec. William G. Ross, Jr., N.C. Dep’t of Env’t and Nat

Resources, North Carolina’s Clean Smokestacks

Act, www.ncair.org/news/leg/cleanstacks.shtm ........

INTEREST OF AMICI

In the Clean Air Act, Congress assigned to the States the

primary responsibility for the day-to-day regulation of air

pollution. “In the proper discharge of their responsibilities

to implement the [Act] in different conditions and localities

nationwide, the States maintain permanent staffs within

specialized agencies.” Alaska Dep’t of Envtl. Conservation v.

EPA, 540 US. 461, 516 (2004) (Kennedy, J., dissenting).

These state environmental regulators are committed public

servants who “take pride in their own resourcefulness,

expertise, and commitment to the law ....” Id.

The amici States oppose EPA’s sweeping, enforcement-

inspired interpretation of the Clean Air Act’s NSR/PSD

provisions for three reasons, all of which relate to the States’

role as the principal front-line enforcers of the Act's re-

quirements. Specifically, EPA’s current reading -

e Contradicts EPA’s earlier interpretations and, in-

deed, EPA’s past guidance to state regulators;

e Envisions a breathtaking transfer of enforcement

authority from the States to the federal govern-

ment and thus undermines the Clean Air Act's

federalism-respecting foundations; and

e Risks needlessly overwhelming the limited re-

sources available to state environmental agencies.

This Court should reject EPA’s current interpretation-

qua-litigating-position. Doing so will encourage principled

agency decisionmaking, preserve the state-federal balance,

and ensure a robust, yet manageable, NSR/PSD program.

SUMMARY OF THE ARGUMENT

EPA’s current litigating position concerning the Clean

Air Act's NSR/PSD rules (1) flatly contradicts its own earlier

interpretations and guidance to States, (2) violates the

fundamental principles of federalism that underlie the Act,

(3) risks needlessly overwhelming the state regulators who

are responsible for the Act's day-to-day implementation,

and (4) entails hidden pitfalls even as a matter of environ-

mental policy. The Court should reject it.

1. EPA’s litigating position (which, with respect, is all it

is) is not entitled to deference, for two reasons. First, EPA

has consistently blessed state environmental regulators’

NSR/PSD interpretations contrary to the one it now urges.

The Alabama Department of Environmental Management's

experience is illustrative: Consistent with express EPA

guidance, ADEM initially interpreted - and has since then

consistently interpreted - its own NSR/PSD rule to require

an increase in a unit's hourly emission rate as a prerequisite

to “major modification” analysis. Despite its constant

supervision of ADEM’s program (right down to its review of

individual NSR/PSD permits), EPA has never once sug-

gested that ADEM misunderstands the rules’ text or pur-

pose. Second, and more generally, EPA’s own approach to

the rules here at issue has been frightfully inconsistent.

Indeed, during the last 25 years, EPA has at seven different

junctures offered at least three different and mutually

exclusive interpretations of those rules.

2. On two grounds, EPA’s enforcement-inspired inter-

pretation undermines the Clean Air Act’s carefully cali-

brated state-federal enforcement scheme, which charges the

States with primary enforcement responsibility. First,

because under it, nearly every change made to every compo-

nent of every sub-par unit would trigger application of

stringent new NSR/PSD emission-limit requirements, EPA's

sweeping reading would cause the exception of federal

intervention to swallow the rule of state control. Second,

there is a straightforward - and federalism-respecting -

solution for States that want tougher new-source controls:

they should simply enact them as a matter of state law. The

Clean Air Act establishes a baseline of protection sufficient

to safeguard human health and safety, but by its own terms

it also expressly invites States to tighten requirements as

they see fit and thus act as Brandeisian “laboratories.”

3. EPA's litigating position - which, again, would make

nearly every tweak to an existing plant the occasion for

rigorous pre-construction review - is also wildly impractical.

Our chief concern here is the overwhelming burden with

which EPA’s current interpretation would saddle the state

regulators tasked with the ground-level enforcement of

Clean Air Act requirements. If on top of their existing duties

- developing and implementing SIPs and processing NSR

and PSD applications under current law - state regulators

had to deal with the flood of new requests that EPA’s

current view would unleash, the burden would overwhelm

existing resources, leading either to an administrative

breakdown, a bureaucratic explosion, or both.

4. Important public-policy considerations counsel

against EPA’s litigating position, as well. First, of course,

there is the sheer expense (i.e., the permitting process itself

plus the required retrofits) that EPA’s current view would

entail. Our concern here is less with industry costs as such

than with the near-certainty that industry would simply

pass its own increased costs on to consumers in the form of

rate hikes. That concern is particularly acute where, as here,

the affected consumers are utility rate-payers, whose inter-

ests state Attorneys General are statutorily obliged to

protect. Second, there are good clean-air reasons to oppose

EPA’s enforcement position. The cost - in money, time, and

labor - of EPA’s enforcement initiative will create what EPA

itself has called a “perverse” incentive for industry to

eschew upgrades in favor of limping by on old, deteriorat-

ing, and environmentally-unfriendly equipment.

5. Petitioners’ jurisdictional argument clearly misses

the mark. Section 307(b) encompasses only challenges to

“promulgatiions}” of “nationally applicable regulations”

and other EPA “final action[s].” This case, which concerns

the propriety of EPA’s application of its NSR/PSD rules in

the context of an ongoing enforcement action, involves no

such challenge. Moreover, it simply cannot be the law that

when EPA itself initiates an enforcement proceeding in

district court, the target is faced with the choice of either (1)

declining to defend and accepting an adverse judgment or

(2) instituting a duplicative proceeding in the D.C. Circuit.

ARGUMENT

This brief is no apology for industry. In a perfect world,

with blank statute books and unlimited resources, the amici

States might opt for the type of enforcement agenda EPA is

pursuing here. Our disagreement with EPA (with one

notable exception) is less about environmental policy than

about the legality and real-world practicality of EPA’s

current enforcement initiative. As matters now stand, EPA’s

actions are both illegal and wildly impractical.

I. EPA’s Current Litigating Position Is Not Entitled to

Deference, Particularly Given EPA’s Consistent En7

dorsement of State Agencies’ Longstanding PSD Inter7

pretations to the Contrary.

We start with the question of legality. The notion that

there is only one plausible reading of the Clean Air Act's

1980 PSD rule,’ requiring intensive pre-construction review

based solely upon a projected increase in a plant's hours of

operation (Pet. Br. 2, 25, 34, 49; EPA Br. 13, 19-20; NY Br. 7),

is, as we will explain, plainly wrong. So, too, is the related

suggestion that EPA has had anything like a “longstanding”

interpretation (Pet. Br. i; NY Br. 1; NJ Br. 2) to that effect

1 45 Fed. Reg. 52,676 (Aug. 7, 1980) (codified at 40 C.F.R. §51.166 (1987).

2 To its credit, EPA itself does not even claim here to have had a longstand-

ing position concerning the meaning of the 1980 PSD rule. And with good

reason; as we will show, EPA’s own reading of the rule has been anything

but consistent. See infra at 10-14. Indeed, even its brief in this Court seems

more than a bit schizophrenic. At one point, for instance, EPA asserts that

“[t}he only reasonable construction of the PSD regulations is that a physical

change that increases a source’s hours of operation is a ‘modification.””

EPA Br. 20 (emphasis added). A bit later, EPA says, quite differently, that

“it would have been permissible for EPA to” construe the term “ modifica-

tion” for PSD purposes the way it is used in the NSPS program, i.c., to

require an increase in the hourly rate of emissions. /d. at 35.

Duke itself has made the textual case against EPA’s cur-

rent reading of the 1980 PSD rule (Duke Br. 33-36), and there

is no point in replowing that ground here. Our purpose is to

demonstrate that EPA’s current hours-of-operation-based

litigating position does not warrant deference (1) because

the agency has consistently blessed state environmental

regulators’ interpretations to the contrary; and (2) more

generally, because it is just the latest in a bob-and-weave

succession of contradictory agency pronouncements.

A. EPA Has Consistently Blessed State7Agency PSD

Interpretations Contrary to the One It Now Ad7

vances.

As Justice Kennedy recently observed, “[iJn the proper

discharge of their responsibilities to implement the [Clean

Air Act] in different conditions and localities nationwide, the

States maintain permanent staffs within specialized agen-

cies.” Alaska Dep’t of Envtl. Conservation v. EPA, 540 US. 461,

516 (2004) (Kennedy, J., joined by Rehnquist, C.J., and Scalia

and Thomas, JJ., dissenting). “These state employees, who

no doubt take pride in their own resourcefulness, expertise,

and commitment to the law, are the officials directed by

Congress to make case-by-case, site-specific, determinations

under the Act.” Id. In the State of Alabama - whose experi-

ence is described below merely for purposes of illustration -

the agency to which Justice Kennedy’s observation refers is

the Alabama Department of Environmental Management

(“ADEM”).

From the very beginning, ADEM has understood that

PSD “major modification” review is triggered only by

activity that causes an increase in a plant's hourly rate of

emissions and not, importantly, by a recovery or extension

of the plant’s hours of operation. ADEM first promulgated

PSD regulations in January 1981. Later that same year, those

regulations were expressly “approv[ed]” by EPA as “com-

ply[ing] with the latest guidance issued by EPA to assist

States in preparing State implementation plan (SIP) revisions

for PSD.” 46 Fed. Reg. 55,517 (Dec. 10, 1981) (codified at 40

C.F.R. §52.50). As both ADEM’s current Air Division chief

(since 1996) and his predecessor (chief from 1982 to 1996)

have testified, ADEM’s EPA-approved PSD regulation has

always “focused on the maximum hourly rate of emissions,”

such that “[o]nly if the maximum hourly rate of emissions

increased as the result of a project or activity could the

activity potentially trigger PSD requirements.” Decl. of

Richard E. Grusnick, Former Chief, ADEM Air Division

(“Grusnick Decl.”), $9, in United States v. Alabama Power Co.,

372 F. Supp. 2d 1283 (N.D. Ala. 2005) (App. A to this brief).

In other words, ADEM has at all times read its PSD regula-

tion to mean that “major modification” review is triggered

only by “those projects or activities that increase the maxi-

mum capacity of a unit or facility to emit more pollution on

an hourly basis,” and, equally importantly, not by “a project

or activity that is followed by an increase in the availability

or utilization of a facility.” Decl. of Ronald W. Gore, Chief,

AEDM Air Division (“Gore Decl.”), {5, 7, in Alabama Power,

372 F. Supp. 2d 1283 (App. B to this brief).

Notably, ADEM’s understanding and application of the

term “major modification” - 1e¢., to focus exclusively on

activity that results in an hourly-rate increase - “has not

changed substantively since [the PSD rule’s] original adop-

tion in 1981.” Grusnick Decl. 910. Indeed, ADEM’s inter-

pretation of the PSD regulation has been a model of consis-

tency. Only three individuals have headed ADEM’s Air

Division since the PSD program came onto the scene in 1980.

Under their principled leadership - and through the tenures

of seven different Governors (four Democrats and three

Republicans) and six different Attorneys General (three of

each party) - ADEM has persisted in its hourly-rate-based

understanding of the “major modification” analysis.

ADEM has interpreted its EPA-approved PSD regulation

to focus on hourly-rate increases and to exclude hours-of-

operation increases not only because that is the most sensi-

ble reading of the regulation’s language but also, and more

significantly for present purposes, because that is how EPA

itself said to interpret it. In January 1981, and then again in

June of that same year - just about the time ADEM was

requesting and obtaining EPA’s blessing for its own PSD

regulations - EPA’s Director of Stationary Source Enforce-

ment, Edward Reich, confirmed in two separate memoranda

that PSD applicability “is determined by evaluating any

change in [hourly] emissions rates caused by” a physical or

operational change. JA 28. The reason, Reich explained,

was that, otherwise, “[a]ctual emissions could increase only

if there is an increase in the production rate or hours or

operation, both of which are specifically exempt from PSD

review.” Id. (citing 40 C.F.R. §52.21(b)(2)(iii)(f)); accord JA 35

(“H]n the absence of any SIP or permit limitations,” the

“increase in hours of operation at the power plant” would

not “be considered a modification”) (citing 40 CF.R.

§52.21(b)(2)(iii)(e) and (f)).°

To precisely the same effect, just a year later, EPA’s re-

gional chief of the Air & Waste Management Division, James

Wilburn, issued a report “to all state and local agency

directors” - i.e., to agencies like ADEM - one purpose of

which was to alert state regulators to “interpretations of EPA

regulations.” U.S. EPA, Region IV, Memorandum No. 4AW-

AM, at 1 (July 12, 1982) (App. C to this brief). The report

addressed the very question presented here, and answered it

decisively in favor of ADEM’s understanding:

Question: A source to be modified will be subject to

PSD due to a significant increase in SO2 emissions.

After the modification there will be no increase in the

hourly particulate emissions. The source presently

operates at 4,000 hours per year. If the PSD permit

would allow 7,000 hours per year, would this be

judged a significant increase in particulate emissions,

3 The concerted efforts to marginalize Mr. Reich as just some guy - or,

worse, a rogue bureaucrat - are disingenuous. See EPA Br. 13 (“mid-level

EPA official”); NY Br. 18 (“single agency employee”). Mr. Reich was not

just some guy, he was the guy - the director of the very EPA division

whose responsibility it was to speak to the correct interpretation of the

PSD regulations.

and cause the source to be subject to PSD for particu-

late?

Answer. No. Since the modification does not cause

any increase in [the referenced hourly particulate]

emissions, no increase in annual emissions should be

calculated.

Id. at 2. Notably, North and South Carolina, like Alabama,

are in EPA “Region IV”; accordingly, the state regulators

whose permitting decisions are being second-guessed in this

enforcement action presumably received Mr. Wilburn’s

directive, as well. What is more, North and South Carolina,

like Alabama, adopted their own PSD rules (and obtained

EPA approval) during the Reich-Wilburn era. See 47 Fed.

Reg. 7836 (Feb. 23, 1982) (North Carolina); 47 Fed. Reg. 6017

(Feb. 10, 1982) (South Carolina).

It should be enough that agencies like ADEM acted

against the backdrop of EPA’s own programmatic advice in

crafting and implementing state PSD regulations. But there

is much more. Having initially approved ADEM’s PSD

rules as in “compl{iance] with the latest guidance issued by

EPA” concerning the PSD program and codified those rules

into federal law (supra at 5), EPA has during the last 25 years

repeatedly blessed ADEM’s hourly-rate-based understand-

ing of its PSD regulation. Initially, and most generically, as

an exercise of its “oversight responsibility to ensure that the

state program satisfied the requirements of the Clean Air

Act,” EPA “would periodically issue policy memoranda

which would provide EPA’s guidance on major air program

policy issues.” Grusnick Decl. 916. None of those docu-

ments, however, ever “communicate[d] to ADEM the

interpretations of PSD preconstruction permitting require-

ments that [EPA] advances” in the present enforcement

initiative. Id. |

More specifically, “EPA had numerous, regular oppor-

tunities to identify ADEM’s policies and offer suggestions in

the event it disagreed with ADEM on a point of interpreta-

tion.” Id. $17. .First, EPA conducted “annual on-site audit[s]

of ADEM’s Air Program”; these audits “generally included a

mid-year review where Regional EPA staff members would

visit ADEM, meet with staff, perform file reviews of indi-

vidual plants, and review other records.” Id. Second, as part

of the “federal grant process” there was an “annual negotia-

tion of commitments between EPA and the state” during

- which EPA could identify topics of “high priority” and

leverage “commitments from ADEM.” Id. Third, and

separately, EPA and ADEM negotiated annual Clean Air Act

enforcement agreements covering all aspects of compliance

and enforcement, including, the PSD program. Significantly

here, these agreements stressed the importance of EPA and

ADEM “resolving disputes, especially differences in interpreta-

tion of regulations or program goals as they may affect resolution

of individual instance[s] of non-compliance.”4 The agreements

also provided that EPA and ADEM would “conduct

monthly conference calls” as a means of ensuring a coordi-

nated enforcement strategy.> Tellingly, “[n]o audit or grant

discussion ever targeted implementation of the modification

provisions of the PSD regulations consistent with EPA’s

current interpretation.” Grusnick Decl. 418.

Finally, and more specifically still, as part of what this

Court has called its “sweeping” “surveillance,” “oversight,”

“supervisory,” and “checking” responsibilities, see Alaska,

540 U.S. at 469, 484, 485, 486, 487, 488, 490, 492, 496, 502, EPA

routinely reviewed individual PSD permits issued by

ADEM. To facilitate that review, the Clean Air Act itself

required ADEM to inform EPA specifically of “every action’

taken in the course of the permit approval process” and

further guaranteed EPA the right to submit comments

concerning proposed permits. Id. at 508 (Kennedy, J.,

dissenting) (quoting 42 U.S.C. §7475(d)). Moreover, as

illustrated by the Alaska decision itself - the central premise

of which is that EPA can and should look over state agen-

* Alabama/EPA Compliance Assurance Agreement 2 (1996) (emphasis

added) (Appendix D to this brief).

5 Id. ADEM'’s files contain similar agreements for 1986, 1989, and 1990.

cies’ shoulders to ensure the proper administration of the

PSD program - EPA could always have vetoed ADEM’s

issuance of a permit or otherwise moved to block a change

authorized by ADEM. See id. at 473-74, 480-81 (majority

opinion). Tellingly, it never did.

The point here is simply this: Knowing full well

ADEM’s_ hourly-rate-based understanding of the PSD

modification rule (and, indeed, having counseled ADEM to

embrace that understanding to begin with), it was incum-

bent upon EPA to speak up if it thought ADEM’s under-

standing or application of that rule was out of whack.

Despite hundreds of opportunities, EPA never did so. Of

course, if EPA believed ADEM was way off track (and there

is, to be sure, a huge practical difference between ADEM’s

consistent interpretation and the one that EPA urges in this

litigation), it could have issued a “SIP call” requiring ADEM

either to change its ways or to forfeit its permitting authority

altogether. See 42 US.C. §7410(c)(1), (k)(5).. But ADEM

never received so much as a tap on the shoulder. By now

pulling the rug out from underneath ADEM 20 years after

the fact, EPA has “indulge[d]” in precisely the “inequitable

conduct” this Court implicitly forbade in Alaska, 540 US. at

495. See also id. (emphasizing that it is essential for EPA “to

act on a timely basis” if it is going to second-guess state

regulators); id. at 513 (Kennedy, J., dissenting) (recognizing

the “need for finality in state permitting decisions” and that

“a post hoc veto procedure” upsets “reliance and expecta-

tion interests”). ,

B. EPA’s Own Pronouncements Concerning the PSD

Rule Have Been Frightfully Inconsistent.

Alabama’s interpretation of the PSD rule’s modification

provisions ~ i.e., to hold hours of operation constant and to

require as a prerequisite to “major modification” analysis an

increase in the hourly emission rate - is thus not only EPA-

blessed but also truly longstanding and consistent EPA

itself cannot make a similar claim. It has, with respect, been

all over the map. Presently, of course - by which we mean

currently in the life of this particular enforcement proceed-

ing ~- EPA advances a so-called “actual-to-projected-actual”

understanding of the 1980 PSD rule. Pursuant to that

interpretation, an increase in annual emissions may be

triggered by an increase in a source’s hours of operation

standing alone, that is, even absent an increase in the

source’s hourly emission rate or, indeed, despite a decrease

in that rate. United States v. Duke Energy Corp., 278 F. Supp.

2d 619, 640 (M.D.N.C. 2003) (describing EPA’s position).

That has not always been EPA’s view. In fact, since its

adoption in 1980, EPA has advanced at least three different and

mutually exclusive interpretations of the PSD rule. Tracing the

evolution can be a dizzying exercise:

Take One: Initially, in 1981, EPA endorsed the so-

called “actual-to-actual” test (used, e.g., by ADEM),

pursuant to which a “major modification” occurs

only where activity increases a unit's hourly emis-

sion rate. See supra at 5-8.

Take Two: Then, in its 1988 “WEPCo determination,”

EPA asserted that the “actual-to-potential” test, pur-

suant to which post-change emissions are theorized

by multiplying a unit's maximum emission rate by

the total number of hours in an entire year, was the

only permissible way to measure PSD modifications.

In so asserting, EPA stated categorically that the 1980

PSD regulations “provide no support for” the actual-

to-projected-actual test that it now urges. JA 256 n.7.

Take Three: In the wake of the Seventh Circuit's re-

jection of its actual-to-potential test, Wisconsin Elec.

Power Co. v. Reilly, 893 F.2d 901, 917 (7th Cir. 1990) -

and, seemingly, that court's instruction to apply an

actual-to-actual test using “present hours and condi-

tions,” id. at 918 n.14 - EPA went back to the drawing

bourd. It did not, however, return to its actual-to-

actual interpretation but, instead, embraced the very

actual-to-projected-actual test it had earlier insisted

had “no support” in the regulation. JA 66-72.

Take Four: In its 1992 “WEPCo Rule,” EPA formally

adopted the once-rejected actual-to-projected-actual

test for measuring emissions but, curiously, made it

optional and available only to utilities. See 40 C.F.R.

§51.166(b)(21) & (b)(32) (1993).

Take Five: Then, in 1998, EPA asserted in a proposed

rule that the actual-to-potential test (abandoned after

WEPCo) was and had always been the sole means of

measuring emissions increases for PSD purposes ~ at

least for non-utility sources. See 63 Fed. Reg. 39,857,

39,859 n.4 (July 24, 1998).

' Take Six: In 2002, EPA promulgated a new, manda-

tory actual-to-projected-actual methodology for all

existing sources (not just utilities) and, in so doing,

reiterated its view that the actual-to-potential test

remained the governing standard under the preexist-

ing 1980 PSD rule. See 67 Fed. Reg. 80,186, 80,191-92,

80,199 (Dec. 31, 2002).

Take Seven: Finally, in litigating this very case, EPA

initially invoked the actual-to-potential test as. the

appropriate means of measuring increases under the

1980 rule, but appears to have settled, at last, on a

version of the actual-to-projected actual analysis. See

Duke Energy, 278 F. Supp. 2d at 640 & n.17.

In the words of its own former general counsel, EPA’s

current “multi-billion dollar’ NSR/PSD enforcement

initiative rests “on the premise that the same words in the

law meant one thing in 1985, another thing in 1992, still

another in 1996, yet another in 1998, and will someday mean

something still different in the future.” Joint Hearing on NSR

Issues Before the Senate Environment and Public Works Comm.

and the Senate Judiciary Comm., 107th Cong., pp. 2-3 (July 16,

2002) (statement of E. Donald Elliott) (“Elliott NSR Test.”). It

is a dubious premise.

As a practical matter, New Jersey is exactly right when it

says that “[tJhe States’ ability to plan for and meet their

obligations under the CAA depends on the stability of

nationwide regulations.” NJ Br. 8. The problem is that

EPA’s approach to the NSR/PSD rules has been anything

but “stabfle].” Quite the contrary, EPA’s “many changing

interpretations of NSR over the years have created a legal

mess of baffling complexity ....” Elliott NSR Test. at 1.

More importantly, as a legal matter, EPA's “zigs and zags

represented by its contradictory post-WEPCO statements

and rules” and its failure to speak “with one voice, or a

consistent voice, or even a clear voice, on this issue,” Ala-

bama Power, 372 F. Supp. 2d at 1306, fatally undermine its

claim to deference. See, e.g., Good Samaritan Hosp. v. Shalala,

508 U.S. 402, 417 (1993); INS v. Cardoza-Fonseca, 480 U.S. 421,

446 n.30 (1987). That is particularly true where, as here, the

agency's interpretation has “fluctuated” even “as [the] case

has progressed.” North Haven Bd. of Educ. v. Bell, 456 U.S.

512, 539 n.29 (1982).

It is true, of course, that “[a]n initial agency construction

is not instantly carved in stone.” Chevron, U.S.A., Inc. v.

NRDC, 467 US. 837, 863 (1984). But it is equally true that

““To]nce an agency gives its regulation an interpretation

which, the case law reflects, it may do either through re-

gional guidance determinations (e.g., the Wilburn ere or,

a fortiori, through formal, central-office guidance (e.g.,

Reich memos) - “‘it can only change that interpretation as “~

would formally modify the regulation itself: through the

process of notice and comment rulemaking.” Alaska Prof'l

Hunters Ass'n v. FAA, 177 F.3d 1030, 1033-34 (D.C. Cir. 1999)

(quoting Paralyzed Veterans of America v. D.C. Arena, 117 F.3d

579, 586 (D.C. Cir. 1997)) (finding that FAA had unlawfully

changed an interpretation earlier adopted by its Alaskan

Region); accord, e.g., Caruso v. Blockbuster-Sony Music Enter-

tainment Centre at the Waterfront, 193 F.3d 730, 737 (3d Cir.

1999) (Alito, J.). Given that its current, enforcement-inspired

interpretation of the 1980 PSD rule contradicts its earlier

view (or views, as the case may be), EPA’s position here can

be understood only as a “convenient litigating position,” to

which no deference is due. Bowen v. Georgetown Univ. Hosp.,

488 U.S. 204, 212-13 (1988).

Se. @&

It is worth pausing briefly to take stock of the story that

EPA’s present enforcement initiative - and the newfound

view of the NSR/PSD rules that underlies it - requires the

Court to believe. The current batch of enforcement actions

alleges rampant, if not near-universal, non-compliance with

NSR/PSD rules stretching back some 20 years. How, on

EPA’s retelling, did we get to this point? First, we must

assume that nearly every major utility-industry player (and,

more particularly, every major player’s lawyers) either

fundamentally misunderstood or blatantly ignored EPA

guidance on the meaning of the term “major modification.”

Second, and worse, we must assume that the state environ-

mental agencies that reviewed and approved the hundreds

of building projects now under challenge (ADEM in Ala-

bama Power's case, the North Carolina Department of

Environment and Natural Resources in Duke's) likewise

either misunderstood or ignored EPA guidance. Finally, and

most bizarrely, we must assume that the EPA regulators

themselves, whose very business it was to look over the

States’ shoulders, were (at best) asleep at the wheel. EPA’s

story here is either an elaborate conspiracy theory or a

monument to bureaucratic incompetence. Occam’s Razor

suggests a different explanation: EPA’s current litigating

position just wasn’t the prevailing understanding of

NSR/PSD applicability during the two decades that pre-

ceded the current enforcement initiative’s launch in 1999.

II. EPA’s Litigating Position Undermines the Clean Air

Act’s Carefully Calibrated State7Federal Enforcement

Scheme.

Congress enacted the Clean Air Act with federalism

firmly in mind. There are two important federalism-related

points worth making here, neither of which the state amici

supporting petitioners seem to have come to grips with

First, whereas the Act makes States primarily responsible for

regulating air pollution, and carves out NSR/PSD as a

narrow exception to that general rule of state control, the

position advocated by petitioners and their state amici

would reverse matters entirely. It would make almost every

tweak to an existing source the occasion for intrusive federal

review and intervention. Second, by its very terms, the

Clean Air Act establishes only a regulatory baseline; States

with the desire and the gumption can always enact tougher

environmental controls. States that have declined to do so

have no standing to complain.

A. Under EPA’s Litigating Position, the Exception of

Federal Intervention Would Swallow the Rule of

State Control.

It is a well-recognized fact, as the state amici supporting

petitioners seem to appreciate, that the Clean Air Act “relies

on a close and equal partnership between federal and state

authorities to accomplish congressional objectives.” Alaska,

540 U.S. at 518 (Kennedy, J., dissenting). In the cooperative

scheme established under the Act, States do not play “the

role of mere provinces or political corporations” but, “in-

stead, of coequal sovereigns entitled to the same dignity and

respect.” Id. Indeed, the Act's language itself makes clear

that “air pollution prevention ... and air pollution control at

its source is the primary responsibility of States and local

governments.” 42 U.S.C. §7401(a)(3) (emphasis added); see

also id. §7407(a) (States have “primary responsibility”).

Pursuant to the scheme that Congress established, EPA

initially sets national ambient air quality standards

(“NAAQS") to protect public health and welfare, 42 U.S.C.

§7409, and States, in turn, develop detailed state implemen-

tation plans (“SIPs”) that specify schedules, compliance

_ timetables, and emission limitations for specific sources,

including electric utility plants, id. §7410(a). States must

include in their SIPs a program for pre-construction review

of construction activity that creates new pollution, the aim

being to ensure that pollution not originally accounted for

under a SIP is reviewed and regulated to protect the

NAAQS before it is emitted. Jd. §7410(a)(2)(D). EPA must

approve a SIP if it meets the criteria specified in §7410(a).

See Train v. NRDC, 421 U.S. 60, 78-79 (1975).

As a result of the state-federal balance that Congress

struck, EPA is generally forbidden to micromanage state

emission-control policies with respect to existing sources.

Rather, while EPA is “plainly charged by the Act with the

responsibility for setting” the NAAQS, “[j]ust as plainly ... it

is relegated by the Act to a secondary role in the process of

determining and enforcing the specific, source-by-source

emission limitations which are necessary if the national

standards it has set are to be met.” Id. at 79. Congress gave

EPA “no authority to question the wisdom of a State’s

choices of emission limitations if they are part of a plan

which satisfies the standards” of §7410(a). Id. Rather, so

long as the “ultimate effect of a State’s choice of emission

limitations is compliance with the national standards for

ambient air,” a State is “at liberty to adopt whatever mix of

emission limitations it deems best suited to. its particular

situation.” Id.; see also Union Elec. Co. v. EPA, 427 U.S. 246,

269 (1976) (“Congress plainly left with the States, so long as

the national standards were met, the power to determine

which [existing] sources would be burdened by regulation

and to what extent.”).

The NSR/PSD rules at issue here constitute a narrow

exception to the general rule under the Act that States have

primary responsibility to determine whether and how to

regulate pollution sources. Indeed, in Train, this Court

specifically referred to the emission limits imposed by the

Act’s New Source Performance Standards (“NSPS”) provi-

sions, see 42 U.S.C. §7411, as an “[e]xception{]” to EPA’s

decidedly “secondary role” in “the process of determining

and enforcing the specific, source-by-source emission

limitations.” 421 U.S. at 78 & n.16. When enacting the NSPS

program, Congress considered a more sweeping program

that would have subjected existing sources, as well as new,

to federally-established limits. Significantly, though, noting

cost considerations and the difficulty of retrofitting existing

sources, Congress opted not to pursue that course, see S.

Rep. No. 91-1196, at 15-16 (1970); instead, while requiring

new sources to install the latest control technologies, Con-

gress left existing sources subject to state-established SIP

limits. See 116 Cong. Rec. 42,520 (1970). The Train Court's

emphasis on NSPS exceptionalism, of course, carries over

jot-for-jot to the NSR/PSD program at issue here, for the

simple reason that the NSR program defines the term

“modification” - which for present purposes is what triggers

new NSR-driven emission limits and thus displaces tradi-

tional state control - by reference to the NSPS program’s use

of the same term. See 42 U.S.C. §§7479(2)(C), 7501(4). See

also Alaska, 540 U.S. at 491 (even the PSD program “places

primary responsibilities and authority with the States,

backed by the Federal Government”).

EPA’s position here turns the Clean Air Act on its head

and causes the exception of federal intervention to swallow

the rule of state control. Under EPA’s current regulatory

interpretation, the rigorous NSR/PSD permitting process

(and the establishment of new emission limits) would be

triggered by any physical or operational change to an

existing source that facilitated any increase in hours of

operation and thereby increased annual emissions - even

without a corresponding hourly-rate increase or, for that

matter, despite an hourly-rate decrease. But of course nearly

every repair or replacement of damaged, deteriorating, or

malfunctioning equipment will result in an hours-of-

operation increase (that being the point of the repair) and

thereby - assuming constant, or even marginally reduced,

rates of emission - result in an increase in actual emissions.

Accordingly, under EPA’s view, nearly every physical

change made to every component of every sub-par unit

would trigger application of new NSR/PSD requirements.

(Indeed, when wearing its rulemaking hat, EPA has recently

and candidly conceded that its position “in briefs in various

enforcement-related cases” - presumably a reference to

cases like this one - would make “virtually all changes, even

trivial ones,” subject to NSR requirements.®)

The risk is not hypothetical. Take, as just one example, a

1996 enforcement proceeding brought by EPA against the

Georgia-Pacific Corporation. There, EPA alleged that

Georgia-Pacific had, at a number of its plants (two of which

were in Alabama), engaged in “construction” or “major

modification” activity without the required PSD permits.

See Consent Decree at 1, United States v. Georgia-Pacific Corp.,

No. 1 96-CV-1818-FMH (N.D. Ga. July 18, 1996). That

enforcement proceeding was resolved pursuant to a consent

decree, which constituted “full settlement” for, among other

things, the PSD “modifications” listed in an appendix to the

decree. Id. at 35-36. The catalogue of charged “modifica-

tions” spans 54 pages, numbers 994 individual items, and

stretches back some 19 years. Id. Schedule C. Many of the

items on the list - e.g., “Resin/ glue reformulation,” “ Auxil-

iary feed screw installed,” “Single head sander,” “patch-

line,” “Ramp for loading mulch” - hardly seem like the sorts

of changes Congress had in mind when used the term

“modification” as the statutory trigger for rigorous federal

PSD review. Id. Schedule C at 1, 3, 9, 11, 14.7

The point here is not, as a policy matter, that more or less

stringent controls are preferable. Rather, the point is that in

the light of the Clean Air Act's federalism-respecting under-

pinnings, this Court should be slow to assume that Congress

could possibly have intended to permit such a wholesale

6 68 Fed. Reg. 61,272 (Oct. 27, 2003), vacated, New York v. EPA, 443 F.3d 880

(D.C. Cir. 2006).

7? Importantly, under petitioners’ and EPA’s view of the law (as articulated

in the lower courts), these changes likely would not be exempt from PSD

review under 40 C_F.R. §51.166(b)(2)(a)(iii)'s “routine maintenance, repair

and replacement” exclusion. And therein lies the practical problem with

petitioners’ and EPA’s arguments: They would make PSD applicable “to

virtually any capitalized maintenance or repair project that prevented

enough downtime to breach the emissions increase thresholds.” Alabama

Power, 372 F. Supp. 2d at 1297.

transfer of regulatory responsibility from the States to the

federal government.

B. There Is a True Federalism7Respecting Solution

Here: If a State Wants Stricter New7Source Con7

trols, It Should Simply Enact Them.

The amici States backing petitioners and the EPA here

invoke the value of federalism to support their positions.

See, e.g., NJ Br. 1, 5, 10; NY Br. 1. It is not, with respect, a

notion of “federalism” with which we are familiar. It is, as

we will show, federalism-in-reverse.

The genius of federalism, properly understood, is per-

haps best captured by Justice Brandeis’ famous “laboratory”

metaphor: “It is one of the happy incidents of the federal

system that a single courageous State may, if its citizens

choose, serve as a laboratory; and try novel social and

economic experiments without risk to the rest of the coun-

try.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)

(Brandeis, J., dissenting); accord, e.g., United States v. Lopez,

514 US. 549, 581 (1995) (Kennedy, J., concurring). In other

words, federalism leaves States free to make tough social-

policy decisions for themselves. As we will explain, the Clean

Air Act accommodates - indeed, encourages - Brandeisian,

laboratory-style federalism. But New York, New Jersey, et

al., seem to have a far more ambitious program in mind.

Rather than making decisions for themselves, they want to

upload their own notions of good environmental policy into

federal law and thereby export them to everyone else. What-

ever kind of solution that may be, it is not one that can be

squared with - indeed, it is one that subverts - traditional

federalism principles.

Petitioners’ state amici’s mistake, moreover, is not just

one of terminology. New York's brief opens with a warning

about the “dire ramifications” of emissions from “uncon-

trolled plants,” which, it says, “kill tens of thousands of

Americans annually and sicken hundreds of thousands of

others.” NY Br. 3. But that argument, with respect, is a

straw man, as is any suggestion that affirmance here would

allow plants to “proceed without any scrutiny by the States.”

NY Br. 2. By its own express terms, the Clean Air Act sets

only a baseline of protection. That is, it imposes minimum

compliance requirements and explicitly invites States to

tighten them as they see fit As relevant here, §116 of the

Clean Air Act unambiguously provides that -

nothing in this chapter shall preclude or deny the

right of any State or political subdivision thereof to

adopt or enforce (1) any standard or limitation re-

specting emissions of air pollutants or (2) any re-

quirement respecting control or abatement of air pol-

lution; except that if an emission standard or limita-

tion is in effect under an applicable implementation

plan or under section 7411 or section 7412 of this title,

such State or political subdivision may not adopt or

enforce any emission standard or limitation which is

less stringent than the standard or limitation under

such plan or section.

42 US.C. §7416. The message is clear: States may of their

own accord adopt emissions limitations (here, PSD require-

ments) that are more rigorous than those established by

federal law (here, the Clean Air Act’s own PSD rules). See

Union Elec., 427 U.S. at 256-57 (Clean Air Act “subject([s] the

States to strict minimum compliance requirements”).

The point is simply that if any State at any time wants

lower emissions caps or tighter permitting requirements, it

need only convince its Legislature to enact them and its Governor

to sign them. A few “courageous” States, see New State Ice,

285 U.S. at 311, of course, have had done just that. In 2002,

North Carolina enacted its own “Clean Smokestacks Act,”

which requires coal-fired power plants to reduce emissions

of NOx and SO) far more aggressively than federal law - by

roughly three-quarters over a 10-year period. N.C. Gen.

Stat. §143-215.107D(b)-(d). In addition, the Act specifies that

the State’s largest utilities “must achieve these emissions

through actual reductions at their 14 power plants in the

state - not by buying or trading emissions credits from

utilities in other states, as allowed under federal regula-

tions.” Sec. William G. Ross, Jr., N.C. Dep’t of Env’t and

Nat. Resources, North Carolina’s Clean Smokestacks Act,

www.ncair.org/news/leg/cleanstacks.shtml. The North

Carolina law is thus tougher than federal law on two counts

and, indeed, is touted as going “beyond the requirements of

the EPA’s SIP call.” Id.

More recently, Maryland, too, enacted a “Healthy Air

Act.” Md. Code. Ann. §2-1001 et seq. Over the course of the

next decade, the Maryland law will reduce NOx emissions

by 85%, SO2 by 80%, and mercury by 90%. See id. §2-1002;

Maryland Department of the "nvironment, Maryland Clean

Power Rule: Frequently Asked Questions, www.mde.state.

md.us/ Air/md_cpr.asp. Like North Carolina’s, Maryland’s

law prohibits “power plants from acquiring out-of-state

emissions allowances (trading credits) in lieu of adding

pollution controls locally.” Id. Thus, like North Carolina’s,

Maryland's law is in two respects “stronger than current

federal plans.” Id. It means, so its proponents claim,

“cleaner air in Maryland.” 1d.

Federalism, therefore, is working just the way the Fram-

ers - both of the Constitution and of the Clean Air Act —

intended. If New York, for instance, wants to ensure that its

own “efforts to prevent air quality from deteriorating” are

not “undermine[d]” (NY Br. 1), it should simply redouble

them. There are, to be sure, administrative and political

costs to enacting tough environmental controls - they are,

for better or worse, part of the calculus. What petitioners’

state amici cannot do, consistent with the notion of federal-

ism embodied in Clean Air Act §116 (or with any other

meaningful notion of federalism, for that matter), is to seek

to externalize those costs by free-riding a dubious interpreta-

tion of a federal regulation to their preferred policy out-

come.’

® Finally, if New York (or any other State) believes that emissions from

sources in other States are contributing to a violation of its own air-quality

Ill. EPA’s Litigating Position Has No Basis in the Real7

World Practicalities of Clean7Air Enforcement.

EPA’s interpretation of the applicable PSD rule is, as we

have said, not only illegal but also wildly impractical. We

want to focus briefly on practicalities.

Again, according to EPA, the rigorous PSD permitting

process is activated by any change to an existing source that

recovers lost productivity and thereby (even without a

corresponding emissions-rate increase or, indeed, despite an

emissions-rate decrease) increases annual emissions. The

problem, as we have explained, is that on EPA’s view, nearly

every change, however minor, qualifies, for the simple

reason that nearly every repair of a damaged or deteriorat-

ing part will allow for an hours-of-operation increase and

thereby - assuming constant, or even marginally reduced,

rates of emission - result in an increase in annual emissions.

Not only would that interpretation result in a breathtaking

transfer of regulatory authority from the States to the federal

government, but it would also impose a crippling burden

both on industry and on the state regulators who would be

tasked with its ground-level implementation.

Industry, of course, can speak for itself here. It is enough

for our purposes to point out the obvious. Most plants have

many units, and most units have many parts. Parts will go

down - and thus require repair or replacement - at different

and often unpredictable times. If, as our discussion of the

Georgia-Pacific consent decree shows (see supra at 18), even

relatively minor repair-and-replacement activities trigger the

PSD review process, that process will go on ad infinitum.

Imagine, for instance, that a section of tubes on hypothetical

Boiler No. 1 goes down. PSD review is activated. Just as

that section is set to emerge from the PSD process, a section

on Boiler No. 2 (or perhaps even a different component part

on No. 1) goes down, activating a new round of PSD review.

standards, Clean Air Act §126 provides a specific statutory remedy. See 42

U.S.C. §7426.

Given the sheer number of moving parts in the typical plant

(see, e.g., the 994 “modifications” cited in Georgia-Pacific’s

case) and the amount of time it takes to conduct a proper

PSD review and to issue a permit, see, e.g., Alaska, 540 US. at

516-17 (Kennedy, J., dissenting) (“[F]or a complex project,

the time for approval can take from five to seven years.”), it

is easy to see that the reviews would in many instances

overlap interminably, leaving plant operators in an inescap-

able regulatory Charybdis. (The problem would be exacer-

bated, of course, by the fact that PSD entails a pre-

construction permit process; so the plant operator wouldn't

even be able to begin fixing broken part No. 1 before it got

the final green light from regulators, by which point there

would probably be a broken part No. 2.)

Of greater and more immediate concern to us is the

overwhelming burden with which EPA’s interpretation

would saddle state environmental regulators. Put simply,

state agencies like ADEM would inevitably find themselves

unable to keep up. The backdrop here, of course, is every-

thing that state regulators already do. First, there is the

development of the initial SIP, which must include (among

other things) an EPA-approved PSD provision. See 42 U.S.C.

§7475(a)(1). SIP development, as New Jersey quite correctly

points out, is an “arduous” task. NJ Br. 6. After SIP devel-

opment comes SIP implementation, which includes, among

other things, the issuance to individual facilities of operating

permits that specify those facilities’ emission limitations and

other compliance obligations. Then, there are the individual

PSD applications that regulators process under the prevail-

ing understanding of PSD requirements. Even on its less

aggressive reading of the PSD rules, for instance, ADEM

received, on average, 14 applications per year between 1997

and 2002 - each of which, as we have said, likely took quite

some time to process. See Presentation: PSD Permit Applica-

tions Received by Region 4 (Calendar Year), Annual Joint

EPA/State Enforcement Conference (Atlanta 2002).

Add to that the regulatory crush of EPA’s sweeping PSD

interpretation and the burden would become unsustainable.

Even after managing to educate themselves on the specifics

of the new PSD standards, state environmental regulators

would face a barrage of new permit applications concerning,

among other things, glue reformulations and ramp addi-

tions. See supra at 18. They would then scramble, on the

front end, to initiate dozens upon dozens of new reviews

and then, on the back end, to prosecute each and every

instance of noncompliance. Given their very limited re-

sources, it is almost inconceivable that many States would be

able to do the job, and, in any event, the explosion of bu-

reaucracy would be mind-boggling.°

The point is that this case is not about increasing permit-

ting loads at the margins. If Georgia-Pacific, for instance,

had been obliged to undergo pre-construction review for

each of iis 994 alleged “modifications,” the burden would

have overwhelmed both the company and state regulators.

The Clean Air Act, again, assigns front-line management

responsibility to the States, and the PSD program particu-

larly, given its complexity, indicates Congress’ intent to

structure an enforcement scheme that is sensitive to the

needs and capabilities of state regulators. EPA’s reading of

the PSD rules is anything but. On its view, primary state

control of Clean Air Act regulation would cease to be a “get

to” and would become, instead, a “have to.”

IV. EPA’s Litigating Position Has Fundamental Drawbacks

Even as a Matter of Environmental Policy.

We said at the outset that our disagreement with EPA

here principally concerns the legality and practicality of its

enforcement program, not the environmental policy under-

lying it. While that is true for the most part, there is an

important caveat.

9 EPA itself has recognized that the very aggressive NSR/ PSD interpreta-

tion that it is pursuing in these enforcement proceedings risks overtaxing

the “scarce resources” of “State and local reviewing authorities” and that

an hourly-rate-based reading would “reduce[] the reviewing authorities’

compliance and enforcement burden.” 70 Fed. Reg. 61,094 (Oct. 20, 2005).

This case, we should emphasize, does not pit white-

knight clean-air advocates against greedy polluters. It’s just

not that simple. In fact, there are important countervailing

consumer-related considerations to weigh against EPA’s

aggressive reading of the PSD rules, and, indeed, there are

very good clean-air reasons to oppose that reading.

1. Initially, and perhaps most obviously, there is the is-

sue of cost. There are two costs worth mentioning here.

One, as Justice Kennedy has quite rightly recognized, “is the

[permitting] process itself,” which, he notes, can require an

applicant to “spend up to $500,000.” Alaska, 540 U.S. at 515-

16 (Kennedy, J., dissenting). Another cost, far more signifi-

cant in dollar terms, is the technology itself. Under the

Clean Air Act's PSD provisions, a newly “constructed” (or

“modified,” see 42 U.S.C. §7479(2)(C)) source must ulti-

mately be equipped with “best available control technol-

ogy,” or “BACT.” 42 U.S.C. §7475(a)(4). BACT is, as its

name implies, the latest and greatest. The price tag can run

into the hundreds of millions of dollars per plant.

We have good reason to be concerned about cost, and it’s

not just because industry would have to spend more.

Rather, we are concerned that industry will pass on its own

increased costs to consumers in the form of higher, and in all

probability significantly higher, product prices, monthly bills,

and service fees.1° Of course, as a generic matter, States have

an interest in ensuring that their citizen-consumers can

afford basic goods and services. Thus, we worry that if, for

instance, even non-utility sources like saw, paper, and textile

mills had to be retrofitted with BACT, the prices for the

commodities those mills produce could skyrocket.

The States’ interest here is even more acute because this

case, like so many major PSD enforcement actions, involves

10 Alabama's PSC, for example, has authorized Alabama Power “to adjust

monthly billings to recover” costs associated with “compliance with

environmental laws, regulations, or other such mandates.” Alabama

Power Co. Petition for Adjustment of Rate CNP, Order at 1, Docket Nos.

18117, 18416 (Nov. 1, 2004).

a utility. That fact is significant in two related respects.

First, utilities have a statutory duty to provide the consum-

ing public with reliable service. See, e.g., Ala. Code §37-1-49

(“Every utility shall maintain its plant, facilities and equip-

ment in good operating condition .... Every utility shall

render adequate service to the public and shal] make such

reasonable improvements, extensions and enlargements of

its plants, facilities and equipment as may be necessary to

meet the growth and demand of the territory which it is

under the duty to serve.”). In order to meet that responsibil-

ity, utilities must from time to time repair and replace

deteriorating parts. Second, state Attorneys General have a

statutory obligation to protect the interests of utility rate-

payers. See, e.g., Ala. Code §37-1-16(a) (Attorney General

has authority to “intervenefe] in proceedings” before the

PSC “on behalf of the using and consuming public” in

matters pertaining to, among others, “rate applications, rate

changes and curtailments of service”). The States’ interest,

in sum, is in ensuring that their citizens have access to utility

services that are both reliable and affordable.

Accordingly, while clean air is a good, to be sure, it is not

a good that can, consistent with competing notions of

consumer protection, be pursued at all costs. Cf. Rodriguez v.

United States, 480 U.S. 522, 525-26 (1987) (“[N]o legislation

pursues its purposes at all costs.”). Particularly given the

multitude of other federal programs aimed at ensuring

cleaner air (NSR/PSD, as the EPA seems to acknowledge

here, is hardly the linchpin of the Clean Air Act's regulatory

apparatus!2), we think it quite likely that the harm brought

1 State Attorneys General take this obligation seriously and intervene on

behalf of rate-payers routinely. See, ¢.g., Alabama Power Co. Petition for

Revised Rate ECR Factor, Order at 1, Docket No. 18148 (Dec. 15, 2005)

(Attorney General intervened “to ensure that any rate increases are fair

and equitable to the consumer”).

22 EPA Br. 12 n3 (listing, among the “new programs that improve air

quality,” the Acid Rain Program, the NOx SIP Call, and the Clean Air

Interstate Rule (“CAIR”)). These new pollution-control programs, EPA

has said, “are more efficient than major NSR” and will more than offset

on by EPA’s enforcement-inspired reading of the PSD rules

- particularly for low- and middle-income families, who

may find themselves unable to afford next month’s power

bill - significantly outweighs the benefits.

2. More fundamentally, there are very good clean-air

reasons to oppose EPA’s position here. The sheer cost - in

money, time, and labor - of such an expansive pre-

construction permitting process, not to mention the installa-

tion of BACT at the culmination of that process, would

create an irresistible incentive for industry simply to avoid

repairs and replacements whenever and wherever possible,

and to continue running plants on old, deteriorating, and

environmentally-unfriendly components. Almost everyone

has been down this road at least once: Your old car emits

blue smoke, burns a quart of oil a month, and desperately

needs its piston rings replaced. Your mechanic tells you that

the job will run you $1800 and that , in any event, he can’t do

it for two weeks. What do you do? You just keep on driv-

ing, of course (and the blue smoke just keeps on pumping).

It's simpler, and cheaper, to keep pouring oil into the car.

So, too, here, rather than fixing broken parts - which under

EPA’s litigating position will trigger crippling expenses and

production delays - industry players will just keep their

plants running on inefficient, environmentally-unfriendly

parts.

EPA itself has acknowledged that running plants on de-

teriorating parts is an invitation to environmental trouble.

Indeed, the whole point of EPA’s recent NSR-reform rulemak-

ing initiative - part of which, of course, is to adopt prospec-

tively the very position we advance here - has been to avoid

encouraging plant owners to forego repairs in favor of

continued operation using sub-par equipment. See 70 Fed.

Reg. 61,083 (Oct. 20, 2005) (proposed rule adopting actual-to-

actual emission test); 68 Fed. Reg. 61,248 (Oct. 27, 2003) (rule

any marginal increase in emissions that might result from an hourly-rate-

based reading of the NSR modification rules. 70 Fed. Reg. 61,088.

ing “routine maintenance” exclusion), vacated, New

York, 443 F.3d 880. The reason, EPA has said, is that worn-

out parts often lead to “periods of startup, shutdown, and

malfunction,” which themselves “usually” entail “increased

emissions.” Id. at 61,251. As EPA has explained the prob-

lem, because the NSR/PSD permitting process is “time-

consuming and expensive” and “will likely result in a

requirement to retrofit an existing plant with state-of-the-art

pollution controls, which often is very costly and can present

significant technical challenges,” there is a very real risk that

a plant owner “may forego or curtail replacements that

would enhance the safe, reliable, or efficient operation of its

plant” Id. at 61,250; 70 Fed. Reg. 61,093 (same verbatim).

According to EPA, the solution - the sound environmental

solution, that is ~ is to remove the “perverse” incentive for

plant operators to limp by on deteriorating equipment. 68

Fed. Reg. 61,255; accord 70 Fed. Reg. 61,094 (object to “re-

move disincentives” to making changes that could, among

other things, enhance “environmental performance”).

The logic is compelling, and it applies precisely here. It

is impossible to square with the very different, max-PSD

policy that EPA is pursuing in these proceedings.

V. Section 307(b) Does Not Preclude Enforcement7

Proceeding Targets From Defending by Challenging

EPA’s Application of Clean Air Act Rules.

For two reasons, it seems to us clear that Section 307(b)’s

jurisdictional provision has no application here.

1. First, there is the plain text of the statute. Section

307(b)(1) requires that “petition[s] for review” challenging

(1) “promulgatfions]” of “nationally applicable regulations”

and (2) other “final action[s]” of EPA be filed in the D.C.

Circuit. 42 US.C. §7607(b)(1); accord id. §7607(e) (§307(b)

pertains to “regulations,” “orders of the Administrator”).

Section 307(b)(2) then states that any action “with respect to

which review could have been obtained” in a §307(b)(1)

petition for review shall not be subject to “judicial review” in

an enforcement proceeding. Id. §7607(b)(2). The question,

therefore, is whether Duke’s defensive argument that EPA

had misapplied the preexisting 1980 PSD rule would have

been proper under §307(b)(1).

It would not have been. A civil enforcement proceeding,

of course, is not a “petition for review” within the meaning

of §307(b)(1). No “promulgat[ion]” of any “regulation” is

being questioned here; the pertinent “regulation” here was

“promulgated” in 1980. Nor can EPA’s current interpreta-

tion (qua DOJ litigating position) concerning the 1980

regulation appropriately be considered a “final action.”

Final agency action, of course, has a stylized meaning in the

administrative-law context; to qualify, an agency’s pro-

nouncement must, at a minimum, “’mark the consummation

of [its] decisionmaking process.” Whitman v. American

Trucking Ass’ns, 531 U.S. 457, 478 (2001) (quoting Bennett v.

Spear, 520 U.S. 1 4, 178 (1997)). Particularly given EF A’s

flip-flopping interpretations of the 1980 PSD rule, its current

litigating position surely does not make the grade.

_ Petitioners’ and their amici’s jurisdictional analysis is,

with respect, based on a caricature of §307(b) rather than on

a careful reading of its language. New Jersey, for instance,

asserts at one point that Congress “demand[ed]” in §307(b)

that “the federal minimum requirements” be reviewed

exclusively via petition for review in the D.C. Circuit. NJ Br.

8. But that is not at all what §307(b) says; it speaks, instead,

solely in terms of “promulgatfions],” “regulation{s],” and

“final action{s].” Edging closer to §307(b)’s text, EPA and

other amici stake their argument on the assertion that the

Fourth Circuit’s decision here “effectively invalidates the PSD

regulations” themselves and thus triggers §307(b). EPA Br.

29, 31 (emphasis added); see also, e.g., NY Br. 4 (“effectively

invalidates”). That argument saddles the adverb with more

than it can bear. It depends on the premise that there is only

one reading of the PSD regulation that is even plausible -

namely, to require PSD review based solely on activity that

causes an hours-of-operation increase - and concludes that

any disagreement with that reading renders the regulation

itself a dead letter. As we have shown, however, any

ok, Oe

current assertion that the rule ust be understood to incor-

porate an hours-of-operation trigger is in ihe teeth of EPA’s

own vacillation on the issue. At the end of the day, the fact

remains that Duke’s argument here comes in defense to an

enforcement action that EPA itself initiated in North Caro-

lina. Duke’s defense entails only a challenge to EPA’s

application of the 1980 PSD rule to it, not a frontal assault on

the validity of the 1980 rule itself. This is not a §307(b) case.

2. Plain language aside, petitioners’ and EPA’s reading

of §307(b) would beget either grave unfairness, judicial

chaos, or both. It simply cannot be the law that where, as

here, EPA institutes a civil-enforcement proceeding in a local

district court, the targeted defendant is left with the

Hobson's choice of either (1) rolling over, not defending

itself, and accepting an adverse judgment or (2) instituting

an entirely separate and parallel action in the D.C. Circuit.

Surely, instead, when EPA itself decides to bring suit against

a plant operator in Alabama, for instance, that operator is

entitled to defend itself in Alabama, without cluttering the

court system with a duplicate action in Washington, D.C.

Cf. Adamo Wrecking Co. v. United States, 434 U.S. 275, 285

(1978) (§307(b) does not prevent criminal-enforcement target

from defending itself, so long as court does not invalidate

EPA’s “promulgatfion]” or the “regulation” itself).

The point is that any anti-forum-shopping policy that

might underlie §307(b), see EPA Br. 18, has absolutely no

application to an enforcement-action target like Duke. Here,

by contrast, the shoe is on the other foot. Recently, in Alaska, —

this Court emphasized that EPA may not seek to “achieve an

unfair advantage through its choice of litigation forum.” 540

US. at 493. Petitioners’ and EPA’s casual reading of §307(b)

~ which allows EPA to sue but forbids the target to defend ~

would encourage EPA to do just that.

CONCLUSION

For the foregoing reasons, this Court should affirm the

court of appeals’ judgment.

September 15, 2006

Respectfully submitted,

Troy King

Attorney General

Kevin C. Newsom

Solicitor General

Counsel of Record *

Robert D. Tambling

Chief, Environmental Division

STATE OF ALABAMA

Office of the Attorney General

11 South Union Street

Montgomery, AL 36130-0152

(334) 242-7401

Olivia Rowell

General Counsel

ALABAMA DEPARTMENT OF

ENVIRONMENTAL MGMT.

1400 Coliseum Blvd. »

Montgomery, AL 36110

(334) 271-7858

- ' 5 ates angle ites ahy*« we eas pera

fi ate hii a erie Bile Haske

ce os a i toate a ay

ae Saeeeiesege ee ea ere te y piye'et oy c

Se tne Eat ae Ges setes aur BaP seen ee ee eet ein ome

OS geet a aris LON He Saeed Rage pease sane

hon a He 9 atest atasciad Lawes tL agiingg 2 AN tie <a GR gate

f ee t ie eer

me det ee pata

ni ag Sp Cis: aay

— nny * AA BRE BIT TREO Pe PP Aeaart wap eehy.

; ao, ee a trait Bowie aariet, 2 Aes aiid Race | aie Sets ee .

‘ets ni ey SPAS, Aken:

Le att ee

. SF SW te eer

see F te!

fe wir int FC ere 4 oe Seabee s-3

Fabs) yin ee eee Ni gmat

aren, ah tes sag > ow

Pea i eo fn a ee Rt

SOT er S Srey ae i Ter sabe;

ee ada pe eo ie Raed SS teal sit

**. hagr = tebe * ara oh ee er, age? ° paabs hans Ph Pr th &

ieee ot eshte

Sj int AOR Al Paha T Re Dade *

a Pe » a eh dS Or

Phe a th Te Briel isk 1 laa eae

: 1 a 2 * <_< oe s "7 pe eee > st os Soe :

wg cred mt (eatin heer Paks Ay re

eH Rey erty. s eae ee: aif

ae hs fate 9

; AA 4 pe raw ‘ Didi? ata a

Deri kare , me $e te Ta a eee

, ; =! na i 8 CRE V te, eel gy ia aes SIP ENE 3

; no yey’ Saige rol n 2 eke Kaen z sah Beier Oe bitin ce, -% Sigh .

r bP Sion won nono ee age rt 4 ry Shad ‘nnes! oh a

i, 1 bd eet me ae ain siaiakeaal ‘ “eA phe |

aon ee

EN Age's weiter B20 aber Ly

‘ rh weer le Aes eo whe

*< Gees ey)

ey ty “rae Sdn

il ye cae Sir a re packet "Tse ue

D2 SEMAN OCIS AMAL

Cg), Be 4 thee Mt

~ ae mat ens

a - -

re -

as eg @*

paar igving Af: eines?

‘oan

aga .s Peat

ae ges

an :

aA ae .<-

se. 2 Ok et ots

or 1

? 4

paiteeige

“~~,

ie?

‘ oes

Ta 9 Lest S a 2

veRy ‘*

Cath ee Se

e pasa 7

ba i ieee esiceh @

At ie:

; ea

8 or pagees ee ph ei he eh

etd ic

poe <r ae ae

airing LET

Via Er a ve eee

PAtAc war re ee Se ee

Sahat, Si ji

=~’ ¥

bntaphn

Sele

Cp penta.

eee LOE a

Rat is Sin Mate LPS A Rey

asi: AED ON NAD

wees ats “eS y

‘sateerite thee a

Ae ener Sethe gz eth wre

tay

ae alter

Widens ayaenat:

ee Mee pies a Sanrnch set sikboea Dae ee ee Lee ee eo a

she eds Sintec ak, 2 habias Bape ig ae hale ES aN PD eens les

6th a ee ONS Ljeatine yb neath § Spat EPS Shag at BSS Bernd ie. ae tay gate Sale, KAP. fees Reawhos S eee

Sour Sipe le NNR RADA NES ni Se HD iecpeiat Reh dp Mies

“a ‘ tem ay iv ers as}

Be Seg orete rai: ads dir ed

A ar a ae

Bebe Ae, Maes 7-7 | rs

a) ee

“pina

ae rs

Se EP PRE eae RE,

Baers

eras

eta Fee AA

Ar ¥ kf Ree SN

>) Fe,

Prat, rs Aas?

apa AMT) SC MES

: Paha vitae

eed ie Bore’ Pein» > whe es

a Mes i) -.

its

oh eae ya

Meh tase ae ie 5s pA

E AIREY Seat

Sar gaes,

Soe Pe noah Font

Ap + a ON > oF a b thas

pede nto i

mae one it oir 5h a

P iar aS etna eee

baie = ok

sine en

a Tg aks 45 *

—

ree

> i

js age

4% rawee x oo “4

AK 9k Sige! ~5

aia

vie

aera v maaaass

a a ils eC ice MS

ae peter tee * dive Lal iz >. Btrv & c

oy Nigeiae s wise, ate,

jn oe oe ry pets

atiynl>

Tay Dhan

hehte ye

ered 4

fees Mine 1%, Ae

~ Rg

ty ty

Ma iste a Sli Vobe thy Dayne

te sls SOM paghir,: :

yep aha Spe ramee vie > = >

a ;

. toe oh;

at og if dey so a8ie

af LIS RE tf lay

, $i why Pe ;

a4 Its s ” ee.

pie SDL NS 4,

ei Ds ei ete = Pe oe ’

me ve a “by. “¢ wep.) fa .

fae

biel

esi9

age

Aer

ns oo

Stee

eas iy hae

st rea mi bN ren ‘ 4

Lp Santhlipte ste atlyee “8 + Cl Mie .

ae at eal "y .

at Bes Seer 4 ae is Myeety ;

ie cs sata Bee '.

Aaa? ee

Limca eae iit a,

al pe wanes PY pity *

Doe ee yan ;

Bie z ies ae! Seve Nie ae ‘Shey

eg Mgnt a

aay: fila ay ae

preter: si “Ansar

vier’: ness:

KN ety eh fe")

4: ghee a i“

a vai =") PONS

pete wr ne, ale” od ot ia 18 “ roe Cm

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.