# 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%3A25

## Record

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

## Text

454¢
(30) FILED
SEP 15 2006

No. 05-848 |
THE CLERK
rte
IN THE 7
Supreme Court of the United States

ENVIRONMENTAL DEFENSE, ET AL.,

Petitioners,

Vv.

DUKE ENERGY CORPORATION,

Respondent.

On Writ of Certiorari to the
United States Court of Appeals for the Fourth Circuit

BRIEF OF WALTER C. BARBER
AS AMICUS CURIAE
SUPPORTING THE RESPONDENT

Robert L. Brubaker

(Counsel of Record)

Eric B. Gallon

Porter Wright Morris & Arthur LLP
41 S. High Street, Ste. 3000
Columbus, Ohio 43215

(614) 227-2000

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TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE |
SUMMARY OF THE ARGUMENT 2
ARGUMENT 2

A.

Mr. Reich Was Not an “Inferior” Official, But
Instead at the Apex of EPA’s Organizational
Structure and in Charge of Clean Air Act
Enforcement for the Nation’s Entire Industrial
Stock 3

During 1981 and Many Other Years, Mr. Reich’s
Office, DSSE, Had Lead Responsibility and
Authority for the Making of Applicability
Determinations for the 1980 NSR Regulations,
and Was Active in Carrying Out That
Responsibility 6

Mr. Reich’s Office, DSSE, Participated Actively in
the Rulemaking That Produced the 1980 NSR
Regulations, Including the Drafting and Internal
Review of the Proposed and Final Versions of
Those Regulations 9

CONCLUSION 11

,
TABLE OF AUTHORITIES
STATUTES
42 U.S.C. § 7601(a)(2 A) (2006)..........cccrceserreeeenes
REGULATIONS
AO C.F.R. §§ 56.1-56.7 (2006) ...cccccsessecsecseeseeessveers

ADMINISTRATIVE MATERIALS
45 Fed. Reg. 52,676 (Aug. 7, 1980)..........eceseeeeees

45 Fed. Reg. 85,400 (Dec. 24, 1980) .........cceceeeee

OTHER MATERIALS

Brief for the United States as Respondent
Supporting Petitioners (July 21, 2006) .............02+0

Brief of Former EPA Administrators Carol
M. Browner and Russell E. Train as Amici
Curiae in Support of Petitioners (July 21,

Brief of the States of New York et al. as
Amici Curiae in Support of the Petitioners
(July 21, 2006) .........cccccssesseressssreeseerserserssseeeressenees

Deposition of Michael Trutna, United States
v. Ohio Edison Co., Nos. C2-99-1181 and
-1182 (S.D. Ohio Jan. 29, 2002) ........cceceeererceeeeeees

Deposition of Ronald Van Mersbergen,
United States v. Ohio Edison Co., Nos. C2-
99-1181 and -1182 (S.D. Ohio Oct. 7, 2002)

Deposition of Winston Smith, United States
v. E. Ky. Power Coop, No. 5:04-CV-0034-
KSF (E.D. Ky. Sept. 7, 2005) .......:ceeererseeees

EPA, NSR/PSD Policy and Guidance
Database, http://www.epa.gov/region7/
programs/artd/ air/policy/search.htm .............

Letter from Edward Reich, Director,
Division of Stationary Source Enforcement,
EPA, to Amasjit Gill, General Electric (June
24, 1981) (Jt. Appx. at 27-34) .......ccecsseeesseees

Memorandum from Edward Reich, Director,
Stationary Source Compliance Division,
EPA, to Directors, Air & Waste
Management Divisions, EPA Regional
ID ertedhcecsconetteteteannacseinisenindientpesios

Memorandum from Edward Reich, Director,
Division of Stationary Source Enforcement,
EPA, to Charles Whitmore, Chief, Technical
Analysis Section, Region VII, EPA (Jan. 22,
1981) (Jt. Appx. at 35-37) 0... ..eceeecssreeeeeeeeees

Memorandum from Edward Reich, Director,
Division of Stationary Source Enforcement,
EPA, to Thomas W. Devine, Chief, Air
Branch — Region I, EPA (Feb. 13, 1978) (Jt.
FR FF chctntctnctcitnstchercccinssinentscntinnees

iv

United States’ Petition for Panel Rehearing
and Petition for Rehearing En Banc, United
States v. Duke Energy Corp., No. 04-1763
GEDA. Fay BD, BEGGS) cccccocccscarccesctssscesscccsocstensse

INTEREST OF AMICUS CURIAE’

Amicus curiae, Walter C. Barber, was the Director of
the Office of Air Quality Planning and Standards
(“OAQPS”) at the Environmental Protection Agency
(“EPA”) from 1976 to early 1982.7 In that capacity, he was
in charge of staff involved in the development of the Clean
Air Act regulations at issue in the present case, i.e., the
regulations governing pre-construction review and
permitting of new and modified sources of air pollution, 45
Fed. Reg. 52,676 (August 7, 1980), commonly referred to as
the 1980 “New Source Review” (“NSR”) regulations.’
While serving as Director of OAQPS, Mr. Barber also served
as EPA’s Acting Administrator from January to May 1981.
During the time Mr. Barber was Director of OAQPS, Mr.
Edward E. Reich, as Director of EPA’s Division of
Stationary Source Enforcement (“DSSE”), issued two
applicability determinations regarding the NSR regulations
that are at the heart of this case.‘ Due to his first-hand

‘All parties have consented to the filing of amicus briefs in letters that
are on file with the Clerk. Amicus, Walter C. Barber, is receiving no
payment of any kind in connection with this brief. Mr. Barber,
however, served as a paid expert witness for Respondent Duke Energy
Corporation in the trial court proceedings below with respect to issues
other than those addressed in this brief. This brief was not authored in
whole or in part by any attorney who is serving or has served in this
case as counsel for a party.

? Mr. Barber has worked in the private sector since he left EPA. Since
2000, he has been a Group Vice President for Jacobs Engineering
Group, Inc., with responsibility for its busimesses in Asia and the
Middle East.

> The term “New Source Review” is intended here to refer both to
EPA’s regulations for the Prevention of Significant Deterioration
(“PSD”) in so-called “clean air” areas and to the regulations governing
pre-construction review in “nonattainment” areas.

* See Letter from Edward Reich, Director, Division of Stationary Source
Enforcement, EPA, to Amasjit Gill, General Electric (June 24, 1981)
(Jt. Appx. at 27-34); Memorandum from Edward Reich, Director,

2

knowledge of Mr. Reich’s position within the Agency at that
time, Mr. Barber is able to clarify the role that Mr. Reich and
his office played in the development and implementation of
the 1980 NSR regulations. Mr. Barber, in the interest of
justice, respectfully wishes to assist the Court in gauging the
significance of Mr. Reich’s two determir:‘ons in 1981.

SUMMARY OF THE ARGUMENT

The various interpretations of the 1980 NSR
regulations that Mr. Reich issued during 1981 in his capacity
as Director of DSSE were authoritative. First, during the
1979-80 rulemaking and then during 1981, Mr. Reich was
the top civil servant at EPA in charge of setting national
policy for stationary source enforcement under the Clean Air
Act. Second, Mr. Reich’s office, DSSE, was the office
within EPA that had primary responsibility and authority
both for making applicability determinations under those
regulations and for overseeing EPA’s regional offices in
following such determinations and referring requests for
determinations. Finally, DSSE staff participated on the
internal EPA working group that drafted the proposed and
final versions of the 1980 NSR regulations.

ARGUMENT

In its Brief in Support of Petitioners, the United
States characterized Mr. Reich as “a mid-level EPA
official”’ and his interpretations as “not authoritative.”
Indeed, in its petition to the U.S. Court of Appeals for the

Division of Stationary Source Enforcement, EPA, to Charles
Whitmore, Chief, Technical Analysis Section, Region VII, EPA (Jan.
22, 1981) (“Cargill Memo”) (Jt. Appx. at 35-37).

* Brief for the United States as Respondent Supporting Petitioners (July
21, 2006) at 13, 28.

* Id. at 14.

3

Fourth Circuit for rehearing in this case, the United States
went so far as to describe Mr. Reich as “an inferior EPA
official” during the relevant timeframe.’ In a similar vein,
some of the amici curiae supporting Petitioners in this case
described Mr. Reich in their briefs as merely “a single EPA
staff member” and “a single agency employee.”

These characterizations by the United States and
certain amici are factually incorrect and misleading, for the
following reasons.

A. Mr. Reich Was Not an “Inferior” Official, But
Instead at the Apex of EPA’s Organizational
Structure and in Charge of Clean Air Act
Enforcement for the Nation’s Entire Industrial
Stock

First, it is critical to understand the organizational
structure of EPA as it existed during the relevant period,
1979-81. Then, as now, the foremost authority to direct
EPA’s operations resided in the President and his appointees,
especially the EPA Administrator, Deputy Administrator,
and various Assistant Administrators. In 1979-81, the total
number of such appointees was relatively small — fewer than
20. The next layer of management under those presidential
appointees consisted of the top ranks of the career civil
service, generally members of the Senior Executive Service
(“SES”). Members of the SES also constituted a relatively
small percentage of EPA’s workforce. Beneath them were

” United States’ Petition for Panel Rehearing and Petition for Rehearing
En Banc, United States v. Duke Energy Corp., No. 04-1763 (M.D.N.C.
July 29, 2005), at 13 n.6, excerpt attached as Appendix A.

* Brief of Former EPA Administrators Carol M. Browner and Russell E.
Train as Amici Curiae in Support of Petitioners (July 21, 2006), at 19.
” Brief of the States of New York ef al. as Amici Curiae in Support of

the Petitioners (July 21, 2006), at 18.

4

multiple layers of middle managers, career civi! servants,
and other staff. During 1979-81, the total number of EPA
employees nationwide was approximately 8,000-9,000.
Thus, just below the thin layer of presidential appointees was
a large number of civil servants supervised by a small cadre
of SES-level professional managers.

Mr. Barber was the Director of OAQPS, with the
responsibility for developing regulations to govern air
pollution from stationary sources. He reported to the
Assistant Administrator for the Office of Air & Radiation
(“OAR”), a presidential appointee, who in tur reported
directly to the EPA Administrator. Thus, Mr. Barber was
only the second layer down from the Administrator in terms

of setting national policy for stationary sources.

During the key period, 1979-81, Mr. Reich held a
position that was comparable to Mr. Barber’s, but it was in
the parallel chain of command devoted to enforcement. That
chain of command was known as the Office of Enforcement
(“OE”). It had its own Assistant Administrator, who also
reported directly to the Administrator. Thus, like Mr.
Barber, Mr. Reich was only the second level down from the
Administrator of EPA. Within OE, Mr. Reich was the
Director for stationary source enforcement, responsible for
communicating national policy on implementation and
enforcement of the NSR program, and for ruling on NSR
applicability determinations. Thus, Mr. Barber and Mr.
Reich were peers who complemented each other
functionally. Mr. Barber was responsible for leading the
development of rules for air pollution from stationary
sources, and Mr. Reich was responsible for leading the
enforcement of those rules. Moreover, Messrs. Barber and
Reich were the persons slated to provide continuity for the
regulation of stationary sources as_ presidential
administrations came and went.

From the standpoints of the Nation’s environment
and economy, the positions of Messrs. Barber and Reich
were of critical importance and high prominence within the
field of air quality management. The term “stationary
sources” encompasses electric utilities, all manner of
manufacturing plants, and the rest of the Nation’s industrial
capacity. The policies governing air pollution from such
capital stock have profound implications for the health of
citizens and the economy. Messrs. Barber and Reich were
the top civil servants in charge of implementing those
policies and, hence, uniquely positioned to have a significant
impact on air quality and the economy.

In sum, Mr. Reich, along with Mr. Barber, were at
the apex of the large body of civil servants at EPA who were
responsible for controlling emissions from stationary
sources. Below the thin layer of presidential appointees, no
one in the field of stationary source enforcement had a
position of greater authority, importance, and prominence
than Mr. Reich. To say, as the United States does now, that
he was merely a “mid-level” or “inferior” official, and that
his interpretations were not authoritative, is simply wrong.
Likewise, Mr. Reich was not just “a single agency
employee,” as certain amici would have it, but rather among
the most senior of all the career employees in the chain of
command devoted to stationary sources under the Clean Air
Act.

6

B. During 1981 and Many Other Years, Mr. Reich’s
Office, DSSE, Had Lead Responsibility and
Authority for the Making of Applicability
Determinations for the 1980 NSR Regulations,
and Was Active in Carrying Out That

Responsibility

Implementation of the Clean Air Act for stationary
sources has involved not only a hierarchy of officials at
EPA’s headquarters, but also officials in various sub-offices
in each of EPA’s ten regional offices (e.g., offices that
process “State Implementation Plans” or engage in
enforcement activities) and in air pollution programs at the
state, tribal, and territorial levels. Given the extensive
variety of federal and non-federal offices involved, the vast
number of stationary sources under regulation, and the
diversity of source-specific circumstances, EPA from its
inception has tried to ensure even-handed and consistent
treatment of such sources, including such treatment under the
NSR regulations." One way EPA tried to do this during
1981 and surrounding years was to designate a single EPA
Headquarters office as having the lead in issuing
applicability determinations on behalf of Headquarters. For
the 1980 NSR regulations, and for the relevant period (1979-
81), that office was DSSE.

Typically, a stationary source or a state official would
present an NSR applicability question to an EPA regional
office. If the regional office could not answer the question
confidently on the basis of the regulatory language or prior

© Congress directed EPA to provide national uniformity and fairness in
the criteria and policies applied by the various EPA regions in
implementing and enforcing the Clean Air Act. See § 301(a(2)(A) of
the Act, 42 U.S.C. § 7601(a)(2)(A) (2006), and EPA’s implementing
“regional consistency” regulations at 40 C.F.R. §§ 56.1-56.7 (2006),
promulgated at 45 Fed. Reg. 85,400 (Dec. 24, 1980).

7

determinations, then the regional office would refer the
question to Mr. Reich’s office. DSSE was understood within
EPA and by state air pollution control officials to be the lead
office for resolving applicability questions under the 1980
NSR regulations.'' DSSE’s determinations were binding on
the regional offices and the states, subject only to
reconsideration or appeal to the relevant presidential
appointees.

"' The definitiveness of Mr. Reich’s NSR guidance and interpretations
around the 1981 time period is corroborated by contemporaneous
documents and deposition testimony from two EPA career employees
intimately involved in the NSR programs from their inception. In late
1983, for instance, Mr. Reich's office sent the appropriate directors in
each of EPA’s regional offices “a summary of all PSD determinations
of applicability made by {his office] between May 1, 1983 and
September 30, 1983,” with instructions to “take note of the
determinations and assure that affected agencies in your Region are
aware of them as well.” Mr. Reich commented that the summary
would be his office’s last, as the Comptroller’s Office had “eliminated
{his office’s] applicability determination function.” Memorandum
from Edward Reich, Director, Stationary Source Compliance Division,
EPA, to Directors, Air & Waste Management Divisions, EPA
Regional Offices (1983), excerpt attached as Appendix B.

Michael Trutna, the chief of EPA's NSP. section in the early 1980s,
affirmed in deposition that, in mid-1983, Mr. Reich was “the ranking
official that made [PSD] applicability determinations.” Deposition of
Michael Trutna, United States v. Ohio Edison Co., Nos. C2-99-1181
and -1182, at 290 and 292 (S.D. Ohio Jan. 29, 2002), excerpts attached
as Appendix C. Ronald Van Mersbergen, the regional NSR specialist
for EPA Region V, also affirmed that Mr. Reich’s office was the EPA
office responsible for making applicability determinations in the early
years of NSR. See Deposition of Ronald Van Mersbergen, United
States v. Ohio Edison Co., Nos. C2-99-1181 and -1182, at 203-06
(S.D. Ohio Oct. 7, 2002), excerpts attached as Appendix D. Mr. Van
Mersbergen further affirmed that compilations of DSSE’s applicability
determinations would have been sent to, and binding upon, states with
delegated authority to administer the PSD program on behalf of EPA.
See id. at 207-12.

Under the organizational structure at the time, the
enforcement function was separated from the air program
rulemaking development function. The air program
rulemaking responsibility was assigned to OAQPS, and the
enforcement responsibility was assigned to DSSE.
Responsibility for NSR applicability determinations was
assigned to Mr. Reich’s office. Mr. Reich and his DSSE
staff could consult, and did consult, with OAQPS, the Office
of General Counsel, and other relevant offices as they
deemed necessary in making applicability determinations. '”

DSSE performed the job of making applicability
determinations for the 1980 NSR regulations frequently. Its
staff, under Mr. Reich’s direction, was in the business of
making NSR_ determinations, both under the 1980
regulations, but also under the predecessor regulations.'°

' DSSE’s 1981 applicability determination for Cargill, Inc. (see Jt.
Appx. at 35-37), for example, states, “This determination has been
made with the concurrence of the Office of Air Quality Planning and
Standards and the Office of General Counsel.”

" DSSE emphasized its role with respect to those predecessor
regulations in a February 13, 1978 memorandum to EPA Region I, as
follows:

Further, it is the function of DSSE to provide guidance for
interpretations which address the implementation of these
regulations [i.e., the NSR regulations for the Prevention
of Significant Deterioration (“PSD”) in effect at the time].
Reliance upon opinions obtained from other EPA offices
without consulting DSSE will not ensure uniform national
policy for implementation of these regulations. Agency
policy requires that DSSE, after consulting with other
EPA offices, make the final recommendation for
interpretation of these requirements.
See Memorandum from Edward Reich, Director, Division of
Stationary Source Enforcement, EPA, to Thomas W. Devine, Chief,
Air Branch — Region I, EPA (Feb. 13, 1978) (Jt. Appx. at 477-483).
Winston Smith, who was chief of the Air Programs Branch of EPA’s
Region 4 office in Atlanta, Georgia in the late 1970s and early 1980s

9

During the six-year period from 1978 to 1983, DSSE made
at least 94 NSR applicability determinations.'* Plainly,
DSSE had a substantial amount of experience handling NSR
applicability determinations during the relevant period.

In sum, Mr. Reich was not just one air pollution
manager at EPA among many managers all having some
responsibility for implementing the 1980 NSR regulations.
To the contrary, he was the manager who had the lead
responsibility for making applicability determinations that
were to govern the behavior of EPA regional offices and
states in their implementation of those regulations.
Moreover, he and his staff typically carried out that
responsibility through consultation and the building of
consensus as necessary, and they had a substantial amount of
experience in issuing such applicability determinations.
Against this background, it is incorrect to say that Mr.
Reich’s NSR determinations were not authoritative.

C. Mr. Reich’s Office, DSSE, Participated Actively in
the Rulemaking That Produced the 1980 NSR
Regulations, Including the Drafting and Internal
Review of the Proposed and Final Versions of
Those Regulations

During Mr. Barber’s tenure at EPA, the Agency used
a working-group system for developing rules. For example,

and is currently director of the waste management division there,
affirmed in deposition that DSSE regularly sent guidance on PSD to
all of the EPA regional offices, so as to share information with them
and ensure the uniform interpretation and application of the rules.
Deposition of Winston Smith, United States v. E. Ky. Power Coop.,
No. 5:04-CV-0034-KSF, at 7-9 and 23-25 (E.D. Ky. Sept. 7, 2005),
excerpts attached as Appendix E.

'* These statistics are the result of searches in EPA’s central web-based
collection of NSR determinations, located at http://www.epa.gov/
region7/programs/artd/air/policy/search. htm.

10

if EPA undertook a rulemaking, it would first form a
working group made up of representatives of each office that
had an institutional interest in the outcome. The group
would prepare the necessary Federal Register notices and
supporting analyses, and then push the notices up through
the appropriate chains of command, and eventually to the
Administrator, for signature. During the review and
signature phase, each office director, such as Mr. Reich,
would be asked to concur, concur with comments, or non-
concur in the package of notices and analyses.

This system was used to develop the 1980 NSR
regulations. The working group would have included
representatives from OAQPS, DSSE, the Office of General

-- Counsel, and certain other offices. During the rulemaking

process from 1979-80, the group held frequent meetings to
discuss specific issues. The representatives of particular
offices were expected to contribute from the standpoint of
the particular interests of their office. Fo: instance, the
DSSE representatives would have been expected to help and
comment primarily with respect to enforcement policy.
Moreover, the proposed and final rules would not have
reached the Administrator’s desk unless Mr. Reich had
reviewed and commented on the Federal Register packages
containing them.

Having participated in the rulemaking for the 1980
NSR regulations, the DSSE representatives on the working
group would have gained an expert level of knowledge about
the format and enforceability of the regulations, putting them
in a good position to formulate authoritative interpretations
of the regulations. Both the United States and the amici in
question overlook this important reality when they suggest
that Mr. Reich’s office was just one ordinary office among
several having some NSR responsibility.

11

CONCLUSION

Mr. Barber respectfully submits, based on his
personal knowledge as Mr. Reich’s peer during the
formation of the 1980 NSR regulations, that Mr. Reich’s
applicability detertninations and underlying interpretations of
the 1980 NSR regulations were in fact authoritative, contrary
to the suggestions of the United States and certain amici.
Mr. Reich in 1981 was the top civil servant for stationary
source enforcement under the Clean Air Act. The Agency
had given him, as DSSE Director, the lead responsibility for
making applicability determinations that were to govem
implementation of the 1980 NSR regulations by EPA’s
regional offices and state, tribal and territorial agencies
across the Nation. DSSE as an office and its director, Mr.
Reich, had extensive experience making NSR applicability
determinations. Finally, DSSE participated in the
development of the 1980 NSR regulations.

Respectfully Submitted,

Robert L. Brubaker
(Counsel of Record)

Eric B. Gallon

PORTER WRIGHT

Morris & ARTHUR LLP

41 S. High Street, Ste. 3000
Columbus, Ohio 43215
(614) 227-2000

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0237%3A25. Public record. Not legal advice.