# Amicus Curiae Brief — Environmental Defense v. Duke Energy Corporation

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0237%3A22

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007
- **Citation:** 549 U.S. 561

## Text

xii
TABLE OF AUTHORITIES — Continued

U.S. Environmental Protection Agency, Research
Triangle Park, EPA-452/R-95-005, Review of the
National Ambient Air Quality Standards for
Nitrogen Oxides: Assessment of Scientific and

Technical Information (1995) ...........cccccccecceseeseeeeseees

Willem R. M. Dassen et al., Decline in Children’s
Pulmonary Function During an Air Pollution
Episode, 36 J. Air Pollution Control Ass’n 1223

UL IUITED cincesvisenececsessishonnbossiteenncerienticsnadsssesdnduundpanedesaiente 7

W. James Gauderman et al., Association between
Air Pollution and Lung Function Growth in
Southern California Children: results from a
second cohort, 166 Am. J. Respir. & Crit. Care
ET A Sa ML eS ee

W. James Gauderman et al., The effect of air pollu-
tion on lung development from 10 to 18 years of

age, 351 New Engl. J. Med. 1057 (2004).................

William S. Linn et al., Air Pollution and Daily
Hospital Admissions in Metropolitan Los Ange-

les, 108 Envtl. Health Persp. 427 (2000) .................

World Watch Institute, World Watch Paper #94,

Cleaning the Air: A Global Agenda (1994)...............

Yun-Chul Hong et al., Effects of Air Pollutants on
Acute Stroke Mortality, 110 Envtl. Health Persp.

BI CIID cccncccnsscenenincepteinusyninntienseennetensennesteniiededldads

Page

INTEREST OF AMICI’

The American Lung Association (“ALA”), a nonprofit
organization founded in 1904, is one of the nation’s oldest
voluntary health organizations. ALA’s mission is to pre-
vent lung disease and promote lung health. ALA is active
in research, public education, and advocacy to reduce air
pollution and its accompanying threats to lung health.
ALA has published many reports on air pollution, most
notably the annual American Lung Association State of the
Air report. Through its advocacy programs, ALA has
participated in the development and enforcement of laws
and regulations related to lung health at the national,
state, and local levels, including playing a major role in
the passage of the Clean Air Act (“CAA”) Amendments of
1977 and 1990.

The American Thoracic Society (“ATS”), an interna-
tional educational and scientific organization, was founded
in 1905. ATS, and the approximately 13,000 physicians
and scientists it represents, help prevent and fight respi-
ratory disease around the globe through research, educa-
tion, patient care, and advocacy. ATS publishes a number
of scientific journals that include studies on air pollution
and health. In fact, the United States Environmental
Protection Agency (“EPA”) has consulted ATS guidelines to
characterize the adverse effects of exposure to air pollu-
tion. See, e.g., National Ambient Air Quality Standards for

’ Pursuant to Supreme Court Rule 37.6, no counsel for any party
authored this brief either in whole or in part. No persons other than the
amici made any monetary contributions to its preparation or submis-
sion. Petitioners, Respondent, and the Solicitor General of the United
States consented to this filing, and letters of consent are being submit-
ted with the brief.

Ozone, 62 Fed. Reg. 38,856, 38,860 (July 18, 1997) (codi-
fied at 40 C.F.R. §§ 50.9, 50.10).

The American Association for Cardiovascular and
Pulmonary Rehabilitation (“AACVPR”), founded in 1985,
is a national organization representing approximately
3,000 members expert in assessing the harm to human
health caused by air pollution. AACVPR and its physician
and scientist members are dedicated to reducing morbid-
ity, mortality, and disability from cardiovascular and
pulmonary diseases. AACVPR carries out its goal through
education, prevention, rehabilitation, research, and
aggressive disease management programs, including
publication of the Journal of Cardiopulmonary Rehabilita-
tion, a scientific journal that includes studies on the
health effects of air pollution.

The National Association for the Medical Direction of
Respiratory Care (“NAMDRC”) was founded in 1977 and
represents approximately 600 members working at more
than 2,000 hospitals nationwide. NAMDRC and its mem-
bers are devoted to studying, preventing, and treating
thoracic and respiratory diseases in order to carry out
their mission of reducing the morbidity and mortality of
patients with respiratory disorders. NAMDRC advances
that mission through various prevention, education, and
advocacy programs to protect lung health, such as filing
comments with EPA regarding the public health impacts of
proposed air pollutant regulations. See, e.g., National
Ambient Air Quality Standards for Particulate Matter, 71
Fed. Reg. 2,620 (proposed Jan. 17, 2006) (to be codified at
40 C.F.R. § 50).

The American College of Chest Physicians (“ACCP”),
founded in 1935, is an international medical society

3

dedicated to providing postgraduate medical education for
physicians, surgeons, and allied health professionals
involved in the diagnosis and treatment of chest diseases.
ACCP, and the more than 16,000 health care professionals
it represents, help promote the prevention and treatment
of diseases of the chest through leadership, education,
research, and communication. ACCP publishes CHEST, a
leading scientific journal featuring clinical research in
pulmonary, critical care, sleep, and chest medicine disci-
plines. ACCP also advocates before government agencies
and the courts, offering expert opinion on issues affecting
cardiopulmonary health, including the effects of air
pollution. See, e.g., New York v. U.S. Environmental
Protection Agency, 413 F.3d 3, 30 (D.C. Cir. 2005) (discuss-
ing studies on the health effects of air emissions that were
presented by amici, including ACCP).

Amici support Petitioners’ position because of the
significant negative health effects associated with in-
creased emissions from coal-fired power plants.

o

SUMMARY OF ARGUMENT

Air pollution can have severe, even fatal, health effects.
Coal-fired power plants, like those operated by Duke Energy
Corporation (“Duke”), emit dangerous air pollutants, notably
particulate matter, nitrogen oxides, and sulfur dioxide.
Exposure to these pollutants can cause a myriad of health
impacts, including premature death, increased hospitaliza-
tion for asthma, and development of chronic respiratory
diseases. Air pollution is especially harmful to children and
their developing respiratory systems. Air pollution from
power plants is also responsible for significant social welfare

4

costs, such as increased health care costs, job absences,
and missed school days.

Congress added the Prevention of Significant Deterio-
ration (“PSD”) program to the Clean Air Act (“CAA”) in
1977 specifically to protect public health and welfare from
the injurious effects of air pollution by tightening existing
pollution controls. Under the PSD program, the operator
of an emitting facility in an area that has attained na-
tional ambient air quality standards (“NAAQS”) may not
undertake a “modification” of that facility unless EPA has
issued a permit. To fulfill Congress’s goal of protecting
public health and welfare, EPA has required operators of
coal-fired power plants to obtain a PSD permit for any
plant modifications that will cause a significant increase
in annual net emissions.

However, the Fourth Circuit Court of Appeals rejected
EPA’s interpretation of what constitutes a PSD “modifica-
tion” and instead imposed a definition that will allow old
coal-fired power plants to be completely refurbished and
increase their total amount of harmful emissions, without
being required to obtain a permit from EPA. Such plant
refurbishments substantially increase the actual amount
of air pollution emitted to the surrounding community,
thereby further degrading air quality and causing signifi-
cant adverse public health and welfare effects. Contrary to
the Fourth Cir. .:’s ruling, EPA correctly implemented a
PSD program that achieves Congress’s goal of protecting
public health and welfare from the harms of increased air
pollution from power plant “modifications.”

¢

ARGUMENT

I. Air Pollution from Coal-Fired Power Plants Has
Significant and Severe Impacts on Public Health
and Welfare.

Coal-fired power plants, which are comprised of
individual electric generating units (“EGUs”), are major
sources of three pollutants specifically addressed in the
Clean Air Act: particulate matter (“PM”), nitrogen oxides
(“NO,.”), and sulfur dioxide (“SO,”). See 42 U.S.C.
§ 7403(g)(1) (2004). Not only are these pollutants harmful
themselves, but NO. and SO, also contribute to the forma-
tion of additional PM, and NO. is an essential precursor to
the creation of ozone. The emission of these pollutants, as
well as their roles in forming additional pollutants after
emission, has significant and severe impacts on public
health, even when the pollutants are present at levels
below the air quality standards mandated by the CAA. See
Staff of Senate Committee on the Environment and Public
Works, 95th Cong., A Legislative History of the Clean Air
Act Amendments of 1977, 6634-55 (Comm. Print 1978)
{hereinafter “CAA 1977 Legis. History”) (statement of the
House Committee on Interstate and Foreign Commerce)
(discussing multiple ways in which attainment of NAAQS
does not adequately protect public health).

Children are especially vulnerable to the health
impacts of air pollution because they breathe more air per
pound of body weight than adults and because most of the
human respiratory capacity is developed before the age of
eighteen.’ Moreover, because children are outside for

* Rodney R. Dietert et al., Workshop to identify critical windows of
exposure for children’s health: immune and respiratory systems work-
group summary, 108 Envtl. Health Persp. 483 (2000); Blanka Binkova

(Continued on following page)

6

longer periods of time and are usually more active when
outdoors, they inhale more polluted air than adults typi-
cally do.”

A. Health Impacts of Particulate Matter

According to EPA, PM is a “mixture of microscopic
solids and liquid droplets suspended in the air” made up of
a number of different components, including acids, chemi-
cals, metals, soils, dust, and allergens, such as pollen. U.S.
Environmental! Protection Agency, Office of Air and Radia-
tion, EPA-452/F-03-001, Particulate Pollution and Your
Health (2003), available at http://www.epa.gov/airnow/
particle/pm-color.pdf. The particles that make up PM vary
in size, but most are one-seventh to one-thirtieth the
diameter of a strand of human hair. Researchers catego-
rize PM according to size — generally speaking, coarse
particles are between 2.5 and 10 microns in diameter
(PM,,.,); fine particles are 2.5 microns in diameter or
smaller (PM,,); and ultrafine particles are smaller than
0.1 micron in diameter.‘ Because of the relatively small
size of individual particles, PM is often visible only as the
haze that forms when millions of particles in the air blur
the spread of sunlight.

et al., The effects of air pollution on children’s health and development:
a review of the evidence, WHO Regional Office for Europe (2004),
available at http://www.euro.who.int/document/EEHC/execsum pdf.

* American Academy of Pediatrics, Committee on Environmental
Health, Ambient Air Pollution: Health Hazards to Children, 114
Pediatrics 1699 (2004).

* U.S. Environmental Protection Agency, EPA/600/P-99/002aF, Air
Quality Criteria for Particulate Matter, Vol. 1, p. 2-7 to 2-37 (2004),
available at http://oaspub.epa.gov/eims/eimscomm.getfile?p_download_
id=435945.

Coal-fired power plants produce PM through both
mechanical and chemical processes. Burning coal me-
chanically produces coarse PM and larger, visible particles
by breaking or reducing large chunks of coal into smaller
ash and soot, with the material itself remaining the same
chemically.” Burning coal also emits elemental carbon,
SO,, and NO,, which chemically react with water and
other compounds in the atmosphere to form fine and
ultrafine particles of different chemical compounds.*

Because of PM’s size, these particles get trapped in
the smaller airways and alveoli of the lungs, and the fine
and ultrafine PM can pass through the alveoli into the
blood stream, traveling throughout the body.’ Although
PM may vary in size and method of formation, the interac-
tion of all sizes of PM with the body can have serious
consequences.

Exposure to PM can kill." When PM levels in the air
are high, deaths can occur immediately (i.e., on that day or
soon thereafter), or within one to two months, by inducing
heart attacks and strokes.” In addition, daily exposure to

* Id.
* Id.
* Gunter Oberdorster et al., Nanotoxicology. An Emerging Disct-

pline Evolving from Studies of Ultrafine Particles, 113 Envtl. Health
Persp. 823 (2005).

* C. Arden Pope III et al., Particulate Air Pollution and Daily
Mortality on Utah's Wasatch Front, 107 Envtl. Health Persp. 567
(1999).

* Francesca Dominici et al., On the Use of Generalized Additive
Models in Time-Series Studies of Air Pollution and Health, 156 Am. J.
Epidemiology 193 (2002); Yun-Chul Hong et al., Effects of Air Pollutants
on Acute Stroke Mortality, 110 Envtl. Health Persp. 187 (2002); Shang-
Shyue Tsai et al., Evidence for an Association Between Air Pollution

(Continued on following page)

8

PM, even at low levels, can lead to death by causing life-
threatening diseases. Unfortunately, PM does not just
make people die a few days earlier than they might other-
wise; these are premature deaths that would not have
occurred until months or years later if the air were
cleaner.”

In addition to premature death, sharp increases in PM
levels in air pollution have been linked to other serious
health effects, including increased numbers of heart
attacks (especially among the elderly and people with
cardiovascular disease),” increased hospitalization for
cardiovascular disease (including strokes and congestive
heart failure),” increased emergency room visits for

and Daily Stroke Admissions in Kaohsiung, Taiwan, 34 Stroke 2612
(2003).

Douglas W. Dockery et al., An Association Between Air Pollution
and Mortality in Six U.S. Cities, 329 New Engl. J. Med. 1753 (1993); C.
Arden Pope III et al., Particulate Air Pollution as a Predictor of
Mortality in a Prospective Study of U.S. Adults, 151 Am. J. Respir. &
Crit. Care Med. 669 (1995); Daniel Krewski et al., Reanalysts of the
Harvard Six Cities Study and the American Cancer Society Study of
Particulate Air Pollution and Mortality (Health Effects Institute 2000).

" Antonella Zanobetti et al., The Temporal Pattern of Respiratory
and Heart Disease Mortality in Response to Air Pollution, 111 Envtl.
Health Persp. 1188 (2003), Francesca Dominici et al., Airborne Particu-
late Matter and Mortality: timescale effects in four US cities, 157 Am. J.
Epidemiology 1055 (2003).

" Daniela D’Ippoliti et al., Air Pollution and Myocardial Infarction
in Rome: a case-crossover analysis, 14 Epidemiology 528 (2003);
Antonella Zanobetti & Joel Schwartz, The Effect of Particulate Air
Pollution on Emergency Admissions for Myocardial Infarction: A
Multicity Case-Crossover Analysis, 113 Envtl. Health Persp. 978 (2005).

” Kristi B. Metzger et al., Ambient Air Pollution and Cardiovascu-

lar Emergency Department Visits in Atlanta, Georgia, 1993-2000, 15

Epidemiology 46 (2004); Shang-Shyue Tsai et al., Evidence for an

Association Between Air Pollution and Daily Stroke Admissions, supra
(Continued on following page)

9

patients suffering from acute respiratory ailments,” and
inflammation of lung tissue in otherwise healthy young
adults.” In addition, scientific evidence shows that chronic
exposure to PM can shorten life one to three years by
increasing the risk of dying from lung cancer and cardio-
vascular diseases,” as well as by inflicting significant
damage to the small airways of the lungs.”

Those at the greatest risk of adverse health effects
from chronic exposure to PM pollution include children (18
years and younger), the elderly (65 years and older), people
with chronic lung diseases (such as asthma, chronic bronchi-
tis, and emphysema), people with chronic cardiovascular

note 10; Gregory Wellenius et al., Particulate Air Pollution and
Hospital Admissions for Congestwe Heart Failure in Seven United
States Cities, 97 Am. J. Cardiology 404 (2006); Gregory Wellenius et al.,
Particulate Air Pollution and the Rate of Hospitalization for Congestive
Heart Failure among Medicare Beneficiaries in Pittsburgh, Pennsyl-
vania, i161 Am. J. Epidemiology 1030 (2005).

“* Stephen Van Den Eeden et al., Final Report to the California Air
Resources Board, Contract 97-303, Particulate Air Pollution and
Morbidity in the California Central Valley: a high particulate pollution
region (2002).

* Andrew J. Ghio et al., Concentrated Ambient Air Particles Induce
Mild Pulmonary Inflammation in Healthy Human Volunteers, 162 Am.
J. Respir. & Crit. Care Med. 981 (2000).

* C. Arden Pope III, Epidemiology of Fine Particulate Air Pollution
and Human Health: bwlogical mechanisms and who's at risk?, 108
Envtl. Health Persp. 713 (2000); C. Arden Pope III et al., Lung Cancer,
Cardiopulmonary Mortality, and Long-Term Exposure to Fine Particu-
late Air Pollution, 287 J. Am. Med. Ass’n 9 (2002); C. Arden Pope III et
al., Cardiovascular Mortality and Year-round Exposure to Particulate
Air Pollution: epidemiological evidence of general pathophysiological
pathways of disease, 109 Circulation 71 (2004).

" Andrew Churg et al., Chronic Exposure to High Levels of
Particulate Air Pollution and Small Airway Remodeling, 111 Envtl.
Health Persp 714 (2003).

10

disease, and people with diabetes.“ Children are among
the most vulnerable to continual exposure to PM, begin-
ning even before they are born and shaping the future of
their bodies’ ability to function. Chronic exposure to PM
has been linked to increased risk of premature birth and
slowed lung function growth in children and teenagers.”
Short-term increases in PM levels are especially harmful
to children, causing increased severity of asthma attacks
and increased hospitalization for asthma.”

* U.S. Environmental Protection Agency, Air Quality Criteria for
Particulate Matter, supra note 4; Antonella Zanobetti & Joe] Schwartz,
Are Diabetics More Susceptible to the Health Effects of Airborne
Particles?, 164 Am. J. Respir. & Crit. Care Med. 831 (2001).

Sharon K. Sagiv et al., A Time Series Analysis of Air Pollution
and Preterm Birth in Pennsylvania, 1997-2001, 113 Envtl. Health
Persp. 602 (2005); W. James Gauderman et al., Association between Air
Pollution and Lung Function Growth in Southern California Children:
results from a second cohort, 166 Am. J. Respir. & Crit. Care Med. 76
(2002); W. James Gauderman et al., The effect of air pollution on lung
development from 10 to 18 years of age, 351 New Engl. J. Med. 1057
(2004).

* James C. Slaughter et al., Effects of Ambient Air Pollution on
Symptom Severity and Medication Use in Children with Asthma, 91
Ann. Allergy Asthma & Immunology 346 (2003); Mei Lin et al., The
Influence of Ambient Coarse Particulate Matter on Asthma Hospitaliza-
tion in Children: case-crossover and time-series analyses, 110 Envtl.
Health Persp. 575 (2002); Gary Norris et al., An Association Between
Fine Particles and Asthma Emergency Department Visits for Children
in Seattle, 107 Envtl. Health Persp. 489 (1999); Paige E. Tolbert et al.,
Air Quality and Pediatric Emergency Room Visits for Asthma in
Atlanta, Georgia, 151 Am. J. Epidemiology 798 (2000).

11

B. Health Impacts of Nitrogen Oxides

In addition to PM, coal-burning power plants produce
nitrogen oxides, or NO_, a term referring to variant combina-
tions of nitrogen and oxygen atoms in the atmosphere.”
High-temperature combustion processes, such as those
occurring in coal-fired EGUs, motor vehicles, and heavy
equipment, are the primary outdoor sources of NO, emis-
sions.” Power plant NO, emissions’ most significant
impact occurs from their role as a precursor to PM and
ozone, but NO, emissions also directly harm human
health.”

1. Ozone

Ozone is a dangerous pollutant that forms when NO,
in the air combines with volatile organic compounds in the
presence of heat and sunlight.” Recent studies have shown
that acute exposure to ground level ozone can kill. Two
studies published in 2004, one looking at ninety-five cities

*” U.S. Environmental Protection Agency, Office of Air Quality
Planning and Standards, EPA/456/F-98-005, NO.; how nitrogen oxides
affect the way we live and breathe (1998), available at http://www.epa.
gov/oar/noxfidr. pdf.

* U.S. Environmental Protection Agency, Office of Air Quality
Planning and Standards, EPA/454/R-3-005, 2003 Special Trends Report
(2003) at 17.

* U.S. Environmental Protection Agency, Office of Air and Radia-
tion, EPA-452/R-97-002, Nitrogen Oxides: Impacts on Public Health and
the Environment (1997), U.S. Environmental Protection Agency, NO_:
how nitrogen oxides affect the way we live and breathe, supra note 21.

* U.S. Environmental Protection Agency, Office of Air and Radia-
tion, Office of Air Quality Planning and Standards, factsheet, Health
and Environmental Effects of Ground-Level Ozone (1997), at http://
www.epa gov/ttn/oarpg/naaqsfin/o3health html (last viewed on July 13,
2006).

12

across the United States and the other examining twenty-
three European cities, found that even on days when ozone
levels were below the current national standards, an
increase in ozone significantly increased the risk of prema-
ture death.” Three subsequent studies reviewed other
data and confirmed that short-term exposure to high
levels of ozone can shorten life.”

Premature deaths from exposure to ozone occur
because “/o]zone is capable of causing inflammation in the
lung at lower concentrations than any other gas, ...
[which] would be a hazard to anyone with heart failure
and pulmonary congestion, and would worsen the function
of anyone with advanced lung disease.” David V. Bates,
Ambient Ozone and Mortality, 16 Epidemiology 427, 428
(2005). In addition, research indicates that chronic ozone
exposure may lead to decreased lung function in the
general population.”

* See Michelle L. Bell et al., Ozone and short-term mortality in 95
US urban communities, 1987-2000, 292 J. Am. Med. Ass’n 2372 (2004);
Alexandros Gryparis et al., Acute Effects of Ozone on Mortality from the
“Air Pollution and Health: A European Approach” Project, 170 Am. J.
Respir. & Crit. Care Med. 1080 (2004).

* Michelle L. Bell et al., A Meta-Analysis of Time-Series Studies of
Ozone and Mortality with Comparison to the National Morbidity,
Mortality, and Air Pollution Study, 16 Epidemiology 436 (2005);
Jonathan I. Levy et al., Ozone Exposure and Mortality: An Empiric
Bayes Metaregression Analysis, 16 Epidemiology 458 (2005); Kazuhiko
Ito et al., Associations Between Ozone and Daily Mortality: Analysis and
Meta-Analysis, 16 Epidemiology 446 (2005); Steven N. Goodman, The
Methodologic Ozone Effect, 16 Epidemiology 430 (2005).

* Committee of the Environmental & Occupational Health
Assembly of the American Thoracic Society, Health effects of outdoor air
pollution, 153 Am. J. Respir. & Crit. Care Med. 3, 26-27 (1996); Audrey
Galizia & Patrick L. Kinney, Long-term Residence in Areas of High
Ozone, 107 Envtl]. Health Persp. 675 (1999).

13

Scientists have long recognized the harmful health
effects of ozone exposure, including shortness of breath,
chest pain when inhaling deeply, wheezing and coughing,
increased susceptibility to respiratory infections, and
increased risk of asthma attacks.” Children, senior citi-
zens, people who work or exercise outdoors, people with
lung diseases (such as asthma, chronic bronchitis, and
emphysema), and otherwise healthy people who have an
enhanced ozone reactions are especially vulnerable to the
effects of breathing ozone.”

For people with asthma, ozone exposure is especially
harmful, increasing the need for medical treatment and for
hospitalization.” Health experts warn that air pollution,

* ATS Comm., Health Effects of Outdoor Air Pollution, supra note
27.

* Helene Desqueyroux et al., Effects of Air Pollution on Adults
with Chronic Obstructive Pulmonary Disease, 6 Archives Envtl. Health
554 (2002); Peter Héppe et al., Environmental Ozone Effects in Different
Population Subgroups, 206 Int] J. Hygiene & Envtl. Health 505 (2003),
Ralph J. Delfino et al., Emergency Room Visits for Respiratory Illnesses
Among the Elderly in Montreal: Association with Low Level Ozone
Exposure, 76 Envtl. Res. 67 (1998); John M. Peters et al., A Study of
Twelve Southern California Communities with Differing Levels and
Types of Air Pollution II: Effects on Pulmonary Function, 159 Am. J.
Respir. & Crit. Care Med. 768 (1999), George D. Thurston et al.,
Summertime Haze Air Pollution and Children with Asthma, 155 Am. J.
Respir. & Crit. Care Med. 654 (1997); Patrick L. Kinney & Mortin
Lippmann, Respiratory Effects of Seasonal Exposures to Ozone and
Particles, 55 Archives Envtl. Health 210 (2000).

* Janneane F. Gent et al., Association of Low-Level Ozone and Fine
Particles with Respiratory Symptoms in Children with Asthma, 290 J.
Am. Med. Ass’n 1859 (2003); Helene Desqueyroux et al., Short-Term
Effects of Low-Level Air Pollution on Respiratory Health of Adults
Suffering from Moderate to Severe Asthma, 89 Envtl. Res. 29 (2002);
Richard T. Burnett et al., Association Between Ozone and Hospitaliza-
tion for Respiratory Diseases in 16 Canadian Cuties, 72 Envtl. Res. 24
(1997).

14

including ozone, is “one of the most under-appreciated
contributors to asthma exacerbation.” George D. Thurston
& David V. Bates, Air Pollution as an Underappreciated
Cause of Asthma Symptoms, 290 J. Am. Med. Ass’n 1915,
1915 (2003). Even at levels currently considered safe,
children with asthma are among those most vulnerable to
ozone pollution.” A recent study suggests that year-round
exposure to ozone may be associated with an increased
risk of the development of asthma in children.” While
more research is needed to confirm this finding, research-
ers tracked 3,500 students in Southern California and
found an increased onset of asthma in children who took
part in three or more outdoor activities in communities
with high levels of ozone.”

2. Nitrogen Dioxide

In addition to forming ozone and PM, NO, emissions
from coal-fired power plants can also directly harm human
health. Most NO, enters the atmosphere as nitrogen oxide
(NO) and then readily convert to nitrogen dioxide (NO,), a
reddish-brown gas that can become an important compo-
nent of urban haze.”

EPA has determined that short-term exposure to NO,
can lead to increases in respiratory diseases in children

* Janneane F. Gent et al., Association of Low-Level Ozone and Fine
Particles with Respiratory Symptoms in Children with Asthma, supra
note 30.

* See Rob McConnell et al., Asthma in Exercising Children
Exposed to Ozone, 359 Lancet 386 (2002).

* Id.

* U.S. Environmental Protection Agency, 2003 Special Trends
Report, supra note 22.

15

five to twelve years old, as well as coughing and increased
changes in airway responsiveness and pulmonary function
in adults with chronic lung diseases.” Long-term exposure
to NO, may lead to increased susceptibility to respiratory
infection and may cause emphysema-like lesions in the
lungs.” Research has also shown that healthy adult
women who are exposed to NO, experience an increase in
the severity of their subsequent response to ozone.”

Exposure to NO, emissions is particularly harmful to
children, weakening their defenses against respiratory
infection and reducing lung function.” In fact, research
suggests that children exposed to high levels of NO, may
become more susceptible to critical infections of the
respiratory tract.”

* U.S. Environmental Protection Agency, Research Triangle Park,
EPA-452/R-95-005, Review of the National Ambient Air Quality
Standards for Nitrogen Oxides: Assessment of Scientific and Technical
Information (1995); National Ambient Air Quality Standards for
Nitrogen Dioxide: Final Decision, 61 Fed. Reg. 52,852 (October 8, 1996)
(codified at 40 C.F.R. § 50).

* U.S. Environmental Protection Agency, Review of the National
Ambient Air Quality Standards for Nitrogen, Oxides, supra note 35.

” Milan J. Hazucha et al., Lung Function Response of Healthy
Women after Sequential Exposures to NO, and O,, 150 Am. J. Respir. &
Crit. Care Med. 642 (1994).

* W. James Gauderman et al., Association Between Air Pollution
and Lung Function Growth in Southern California Children, supra note
18.

* Leonardo Trasande & George D. Thurston, The Role of Air
Pollution in Asthma and Other Pediatric Morbidities, 115 J. Allergy &
Clinical Immunology 689 (2005).

16

C. Health Impacts of Sulfur Dioxide

Sulfur dioxide (SO,), a gaseous compound formed
largely by burning coal and oil containing sulfur, is an-
other pollutant emitted from coal-fired power plants that
has significant adverse health effects.“’ For most healthy
people, SO, appears to be a temporary irritant, generally
causing comparatively minor discomfort. However, if an
individual resides near a source of continuous SO, emis-
sions, such as a coal-fired power plant, the irritant can
become a persistent aggravation.”’ For people with
asthma, short-term exposures to high levels of SO, has
been linked to rapidly worsened asthma, increasing the
need for hospitalization.

Since SO, is often present with other pollutants in the
air, especially PM and ozone, exposure to SO, provides a
good example of how a combination of air pollutants may
increase the overall adverse health effects of air pollution.
In one study, researchers exposed teenagers with asthma
to ozone alone, SO, alone, and then ozone followed by SO,,
and found that the last combination triggered bronchial
reactions.” In addition, research suggests that increased

“ U.S. Environmental Protection Agency, 2003 Special Trends
Report, supra note 22, at 43.

“ American Lung Association, Health Effects of Outdoor Air
Pollution (1996) at 18.

“ Donald Horstman and Lawrence J. Folinsbee, Sulfur dioxide-
Induced Bronchoconstriction in Asthmatics Exposed for Short Durations
under Controlled Conditions: A Selected Review, in Susceptibility to
Inhaled Pollutants (M. Utell & R. Frank eds., 1989); Jordi Sunyer et al.,
Urban air pollution and Emergency Admissions for Asthma in Four
European Cities: the APHEA Project, 52 Thorax 760 (1997).

“ See Jane Q. Koenig et al., Prior Exposure to Ozone Potentiates
Subsequent Response to Sulfur Dioxide in Adolescent Asthmatic
Subjects, 141 Am. Rev. Respir. Disease 377 (1990).

17

levels of SO, pollution in the air, in conjunction with PM,
may trigger a small but measurable loss of lung function
in children.“

D. Social Welfare Impacts of Emissions from
Coal-Fired Electric Generating Units

In addition to direct adverse health effects, air pollu-
tion caused by emissions from coal-fired power plants
produces serious social welfare impacts. The costs associ-
ated with the myriad of health effects of air pollution are
staggering. For example, air pollution from coal-fired
power plants in the Midwest has been associated with $25
billion per year in health costs.“ Air pollution also inflates
social welfare costs through increased hospital admissions.
Increases in coarse PM (PM.,,) and nitrogen dioxide (NO,)
pollution are associated with increased hospital admis-
sions for cardiovascular disease.“ Patients diagnosed with
arrhythmia or congestive heart failure are particularly
likely to be admitted to the hospital during periods of high
air pollution.” In addition to hospital admissions, in-
creased air pollution can also result in increased costs

“ Douglas W. Dockery et al., Change in Pulmonary Function in
Children Associated with Air Pollution Episodes, 32 J. Air Pollution
Control Ass’n 937 (1986); Willem R. M. Dassen et al., Decline in
Children’s Pulmonary Function During an Air Pollution Episode, 36 J.
Air Pollution Control Ass’n 1223 (1986).

“ World Watch Institute, World Watch Paper #94, Cleaning the Air:
A Global Agenda (1994) at 12.

“ William S. Linn et al., Air Pollution and Daily Hospital Admis-
sions in Metropolitan Los Angeles, 108 Envtl. Health Persp. 427 (2000).

* Jennifer K. Mann et al., Air Pollution and Hospital Admissions

for Ischemic Heart Disease in Persons with Congestive Heart Failure or
Arrhythmia, 110 Envtl. Health Persp. 1247 (2002).

18

associated with standard doctors’ office visits, treatment of
respiratory illnesses, and lost work days.“

Because of the particular vulnerability of children to
air pollution, another serious social and economic impact
resulting from air pollution is lost school days. A recent
study found that increases in ozone led to an increase in
illness-related, particularly respiratory-based, absences
from school.“ Such school absences are costly to students,
educators, and parents. Students who miss school are
likely to suffer academically and to frustrate educators’
efforts to teach them. Parents of childrun who are too sick
to go to school often face a dilemma between missing work
in order to care for their children, leaving their sick
children home alone, or locating childcare, a resource that
is extremely scarce and costly.

E. Public Health and Social Welfare Impacts
of Air Pollution in the Carolinas

Of particular importance in this case, air pollution
from coal-fired power plants harms the health and social
welfare of people living in North Carolina and South
Carolina (collectively, “the Carolinas”). EPA data for the

“ See, e.g., Miriam G. Cisternas et al., A comprehensive study of
direct aid indirect costs of adult asthma, 111 J. Allergy & Clinical
Immunology 1212 (2003) (estimating that adult asthma patients spend
an average of $5,000 annually on asthma related expenses); California
Environmental Protection Agency, Air Resources Board, Recent
Research Findings (2004) at 4, available at http://www.arb.ca.gov/
research/health/fs/pm-03fs.pdf (estimating that air pollution in Califor-
nia results in about 2.8 million lost work days per year).

* See Frank D. Gilliland et al., The Effects of Ambient Air Pollution
on School Absenteeism Due to Respiratory Illness, 12 Epidemiology 43
(2001).

19

2005 operating year show that coal-fired power plants in
North Carolina emitted 500,935 tons of SO, and 114,299
tons of NO..” In South Carolina, coal-fired power plants
emitted 217,385 tons of SO, and 53,403 tons of NO, in
2005."

Contributing to the air pollution in the Carolinas are
the eight coal-fired power plants operated by Duke that
are at issue in this case (seven are located in North Caro-
lina, and one is located in South Carolina). Data collected
by EPA show that the Duke plants emitted 310,000 tons of
SO, and 59,187 tons of NO, in 2005 — more than one-third
of the total emissions of these pollutants in the Carolinas.”
Emissions of SO,and NO, from coal-fired power plants in

* US. Environmental Protection Agency, Clean Air Markets - Data
& Maps: Where You Live, at http://cfpub.epa.gov/gdm/index.cfm?fuse
action=whereyoulive.nation (follow “North Carolina” link) (last viewed
on July 13, 2006).

*' Jd. (follow “South Carolina” link) (last viewed on July 13, 2006).

®@ U.S. Environmental Protection Agency, Clean Air Markets - Data
& Maps: Facility Emissions Report, at http://cfpub.epa.gov/gdm/index.
cfm?fuseaction=emissions.wizard (follow “Monitoring Location Level
Emissions” link) (last viewed on July 13, 2006). The EPA website
generated the following report for the eight Duke facilities at issue:

Facility Facility So, NO,
State (Name ID Year Tons Tons
NC Belews Creek /|8042 2005 96,.812.7 20.419.3
NC Buck 2720 2005 9,581.8 2,260.2
NC Cliffside 2721 2005 28,209.1 3,986.7
NC Dan River 2723 2005 4,248.3 1,611.2
NC G G Allen 2718 2005 45,4243 8,324.5
NC Marshall 2727 2005 100,540.4 |17,534.5
NC Riverbend 12731 2005 13,964.0 2,619.7
SC iW S Lee 13264 2005 |11,219.7 —‘|2,431.1
TOTAL (310,000.3 /|59,187.2

20

the Carolinas not only harm human health directly, but
they also contribute to the further formation of dangerous
PM and ozone.

Using EPA emissions data and relevant scientific
research, researchers from Abt Associates were able to
assess the direct health impacts of air pollution from
power plants in individual states.” See Abt Associates,
Inc., The Particulate-Related Health Benefits of Reducing
Power Plant Emissions (October 2000) [hereinafter “Abt
Study”), available at http://www.abtassociates.com/reports/
particulate-related.pdf. That study found that air pollution
from coal-fired power plants had a negative impact on
public health and social welfare throughout the nation.
See generally id. at 1-1 to 1-2, and 6-10. With regard to the
Carolinas, the Abt Study estimated that air pollution from
coal-fired power plants in South Carolina annually con-
tributes to approximately 800 deaths, 500 hospitalizations,
599 new cases of chronic bronchitis, and 16,600 asthma
attacks, about 200 of which lead to emergency room (“ER”)
visits. Jd. at 6-10. In North Carolina, the estimated yearly
health effects of air pollution from coal-fired power plants
are even more astounding, contributing to roughly 1,800
deaths, 1,200 hospital admissions, 1,100 cases of chronic
bronchitis, and 37,000 asthmas attacks, nearly 450 of
which lead to ER visits. Jd.

In addition to direct health effects, people living in the
Carolinas experience serious social and economic impacts
from air pollution. For example, the Abt Study estimated

* Abt Associates is a scientific research and policy analysis
consulting firm that EPA has employed to conduct research regarding
air pollution. Abt Study at i.

21

that, each year, air pollution from power plants results in
about 322,000 lost work days in North Carolina and
141,000 lost work days in South Carolina. /d. Air pollution
can also lead to days in which people do not feel able to
participate fully in their normal activities and must
restrict their behavior. See Abt Study at 5-25 (discussing
“minor restricted activity days” or MRADs). The Abt Study
estimated that each year, air pollution from power plants
leads to 721,000 restricted activity days in South Carolina
and 1,640,000 restricted activity days in North Carolina.
Id. at 6-10.

Any increase in air pollution from the Duke power
plants can only make these statistics worse in the Caroli-
nas, especially for the people living, working, learning, and
playing in communities near the plants. Moreover, air
pollution from these plants will also harm the public
health and welfare of communities that are downwind
from the emissions.”

II. The Fourth Circuit’s Interpretation of a PSD
“Modification” Is Inconsistent with Congres-
sional Intent and Would Adversely Affect Pub-
lic Health and Welfare.

Finding that air pollution had resulted in “mounting
dangers to the public health and welfare,” Congress
enacted the CAA “to protect and enhance the quality of the

™ See Abt Study at E-2 (discussing calculation of impacts due to
downwind air pollution); U.S. Environmental Protection Agency, Air
Trends: International Issues & ''.S. Air Quality, at http:/Awww.epa.gov/
airtrends/international.html (last viewed July 19, 2006) (noting that
downwind flow of air pollution in the U.S., Canada, and Mexico is “well
known and documented”).

22

Nation’s air resources so as to promote the public health and
welfare and the productive capacity of its population.” 42
U.S.C. §§ 7401(a)X(2), (b\(1) (2004). However, these congres-
sional goals are undermined by the Fourth Circuit’s holding
that EPA must use the same regulatory test to determine
whether facility “modifications” are subject to the PSD, 42
U.S.C. § 7470 (2004), and New Source Performance Stan-
dards (“NSPS”), 42 U.S.C. § 7411 (2004), programs.

In passing the Clear Air Act Amendments of 1977,
Congress understood that the “maximum feasible protec-
tion of the public health” occurs only when sources of
pollution were subjected to both the NSPS and PSD
programs.” CAA 1977 Legis. History at 6634 (finding of
the House Committee on Interstate and Foreign Com-
merce). It is illogical to interpret the term “modification”
the same in both the PSD and NSPS programs, given
Congress’s understanding in 1977 that a new program —
one specifically designed to protect public health and
welfare in areas that had attained the NAAQS - was
needed to supplement the NSPS program.

Because the NSPS program does not consider the site-
specific air quality impacts of a source’s emissions, 42
U.S.C. § 7411(b) (2004), prior to the PSD program, new

“ New source review (“NSR”) was incorporated into the CAA in
1977 to prevent new or modified sources of pollution from increasing
their emissions in a way that would further deteriorate air quality in a
community. PSD (Part C) is one component of the NSR program and
applies to new or modified sources in areas that are in attainment with
the NAAQS. The other component of NSR is nonattainment NSR (Part
D), which provides emission requirements for new or modified sources
in areas that have not attained the NAAQS. See New York v. U.S.
Environmental Protection Agency, 413 F.3d 3 at 12-13 (describing NSR

program).

23

and modified coal-fired power plants located in relatively
unpolluted areas could comply with NSPS and still emit
enough pollution to degrade local air quality, CAA 1977
Legis. History at 723-28 (statements of Sen. Muskie, chief
Senate sponsor of the 1977 amendments). See also Wiscon-
sin Elec. Power Co. v. Reilly, 893 F.2d 901, 904 (7th Cir.
1990) (noting that the NSPS program had “varying de-
grees of success in controlling pollution in different parts
of the country”). Accordingly, Congress enacted the PSD
program “to protect the public’s health” by ensuring that
emissions from new and modified facilities located in “so-
called clean air areas” would not cause regional air quality
to decline to the minimum level permitted under the
NAAQS. CAA 1977 Legis. History at 6634 (statement of
the House Committee on Interstate and Foreign Com-
merce).

Instead of requiring a PSD permit for any physical or
operational change in an emitting facility that would
result in a significant net increase in the annual emissions
of regulated pollutants, 40 C.F.R. §51.166(b) (2005)
(regulatory definition of PSD “modification”), the Fourth
Circuit’s ruling would require a PSD permit only when a
physical or operational change results in an increase in
the facility’s hourly rate of pollution emissions, 40 C.F.R.
§ 60.14(a) (2005) (regulatory definition of NSPS “modifica-
tion”). Under such a rule, old coal-fired power plants could
undergo refurbishment projects that markedly increase
their overall] annual emissions and further degrade air
quality without receiving a permit from EPA, so long as
the plants’ hourly rate of emissions remain the same. The
resulting public health harms and social welfare costs, see
generally discussion §1, supra, are antithetical to the

24

CAA’s central goal of protecting public health and welfare
by improving air quality.

The modifications of the Duke coal-fired power plants
at issue in this case are just the type of projects that
Congress intended to be subject to the PSD program.
While the refurbished Duke facilities have not increased
their hourly rate of emissions under the NSPS program,
they are located in NAAQS attainment areas and, under
the challenged regulation, would have been required to
install additional PSD pollution contgals to decrease the
total amount of pollution the upgraded EGUs will emit to
the surrounding area.” Such controls would improve, or at
least maintain, the overall air quality in the areas sur-
rounding and downwind of the plants, as well as prevent
exacerbation of the severe health effects of air pollution
already experienced by people in the Carolinas and be-
yond. See discussion § I(E), supra; see also CAA 1977
Legis. History at 4950 (Statement of Sen. Buckley) (noting
that the PSD program “lessens the danger that an upwind
State will impose its pollution on a neighbor”) and 4525
(statement of Sen. Muskie) (discussing concern of the
National Academy of Sciences “that emissions 300-miles
upwind could still contribute to problems in major cities”).

Allowing old coal-fired power plants to undertake
major renovations without being required to install the

“ Refurbished coal-fired plants will increase the amount of
pollution emitted to the atmosphere by extending their operating life,
thus forestalling the construction of new coal-fired plants that would be
subject to more stringent CAA emission requirements. Additionally,
since it also may make more economic sense to use refurbished plants
as base load sources of electric power rather than for peaking purposes,
there will be emissions of harmful air pollutants for more hours per day
and/or during off-peak hours, when before there had been none.

25

more stringent pollution controls mandated by the PSD
program undermines Congress’s goal of protecting public
health and welfare from increased air pollution. Long-term
increases in air pollution will occur when a deteriorated
Duke EGU is refurbished to extend its operational life for
another 20 years, thereby raising the levels of PM and
ozone in the air and increasing the risk of premature
death in adults and asthma hospitalizations for children
exposed to emissions from the plant. See discussion § I(A)
and (B)(1), supra. Even short-term increases in pollution
emissions, such as might occur when a Duke coal-fired
power plant operates a few hours longer each day than it
did prior to renovations, lead to increases in respiratory
diseases in children exposed to NO, as well as rapidly
worsened asthma for people exposed to SO,. See discussion
§ 1(B)(2) and (C), supra.

In addition, overall degradation of air quality due to
the increased emissions from the refurbished Duke power
plants could cause more missed school days for asthmatic
children and more lost work days for adults, particularly
in the Carolinas. See discussion § I(D) and (E), supra.
Thus, the Fourth Circuit’s ruling would inhibit, instead of
promote, the “productive capacity” of the surrounding
community. 42 U.S.C. § 7401(b)(1) (2004).

Allowing coal-fired power plants to undergo changes
that increase their net annual emission of pollution
without undergoing PSD review contravenes the legisla-
tive purpose of the PSD program - to prevent deterioration
of air quality in order to protect public health and welfare
better. See Alabama Power Co. v. Costle, 636 F.2d 323, 401
(D.C. Cir. 1979) (finding that the intent of the PSD provi-
sions “is succinctly stated by the title of that part: ‘Preven-
tion of Significant Deterioration of Air Quality’”) (citing 42

26

U.S.C. § 7470). The occurrence and severity of adverse
health effects caused by air pollution, and the economic
and social welfare costs that accompany them, are directly
related to the total amount of harmful pollutants inhaled.
See generally discussion § I, supra. Accordingly, the goals
of the CAA are best implemented though programs that
reduce the overall emission of harmful pollutants. Con-
trary to the Fourth Circuit’s holding, Congress has clearly
enacted, and EPA has correctly implemented, a PSD
program that serves to protect the public health and
welfare from the harms of increased air pollution.

¢

CONCLUSION

For the foregoing reasons, the Court should reverse
the Fourth Circuit Court of Appeals’ decision.

Respectfully submitted,

Hope M. Bascock, Director
Counsel of Record
KrisTI M. SMITH, Staff Attorney

INSTITUTE FOR PUBLIC REPRESENTATION
Georgetown University Law Center
600 New Jersey Avenue, N.W., Suite 312
Washington, D.C. 20001

Phone: 202-662-9535

Fax: 202-662-9634

Attorneys for Amici

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0237%3A22. Public record. Not legal advice.