# Amicus Curiae Brief — Environmental Defense v. Duke Energy Corporation > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0237%3A28 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2007 - **Citation:** 549 U.S. 561 ## Text _ FILED } (B) OCT 9 - 2006 enticalete OFFICE OF THE CLERK ‘ - @ - y USS, ‘ ee IN THE Supreme Court of the United States ENVIRONMENTAL DEFENSE, ET AL., Petitioners, V. DUKE ENERGY CorpP., ET AL., Respondent. On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit BRIEF OF AMICI CURIAE U.S. REPRESENTATIVE JOE L. BARTON IN SUPPORT OF THE RESPONDENTS GEORGE C. LANDRITH CHRISTOPHER C. HORNER FRONTIERS OF FREEDOM P.O. Box 69 Oakton, VA 22124 (703) 246-0110 Counsel for Amici Curiae U.S. Representative Joe L. Barton —— EEE WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001 TABLE OF CONTENTS BAR GP AU TRIE 8 Bi vcpcecccesnsscesesesccsscenevessosesees STATEMENT OF AMICUS CURIAE IDENTITY PITT ET OTE Cs WIE hictsinercticiinitintnnnasnncctivntsciciscenncnes somepesnisen FRET T eoicntenrssicensteniniteniitiedubatematasennicitaniavtaneinien I. CONGRESS DID NOT INTEND THE NSR PROGRAM TO THREATEN ALL EXIST- ING FACILITIES WITH A “SUBMIT OR SHUT DOWN” ULTIMATUM UPON EXPIRATION OF SOME UNWRITTEN “GRACE - PERIOD” OR = “GRAND- POTTS. Siciisiaaiindadiiesciniadudanasantisidnlcevinipuiondnti A. The Clean Air Act Represents a Delib- erate, Comprehensive Regulatory Regime I a GI itasictitesintnescitetinbiitaninn B. Congress Deliberately Designed Different Programs to Control New Versus Existing is cacietbbinnictintnteniduicintciastnisinincinpumediniing 1. NSR was designed to address new TI icirnichesieieiatrheitedeieiiniciicseccbinpstbiiinainasrnais 2. NSR was not designed or intended to control Existing Sources......................+ 3. NSR was deliberately designed to i iincncientnnvtttincntnnitinmtenssenies 4. In the 1990 Clean Air Act Amend- ments, Congress reaffirmed previous regulatory choices, and strengthened controls on existing sources, without altering NSR’s role in the hierarchy ...... (i) mW WN = 14 il TABLE OF CONTENTS—Continued Page C. Grandfathering in the Clean Air Act; Congress did not play Petitioners’ argued SORDOCUMIORS” BOTIG ..00.000.0rcensseveoresrececcsessees 16 Il. THE NEW SOURCE PROGRAMS MODIFICATION RULE APPLIES ONLY TO EXISTING SOURCE CHANGES THAT CREATE NEW AND UNREGULATED Pee Oana dincttllininstnccincasiinneintiinstnatvicbiieteasens 19 A. The Modification Rule focuses on new GHAIENOTED COBICIEY ose ccccsesccsensescosocssecesesoeees 20 B. NSPS and NSR are closely related pro- grams sharing common features, including the same definition of “Modification.”........ 21 1. Congress deliberately defined NSR modification by references to NSPS I cesccctintnncesntctntuncneininininioniiinas 21 2. NSPS and NSSR share overlapping Tegulatory QOals ............secsesessecvesesesseens 23 SOT incecsinsiencrtsensiinessusitinnensiorssantinsittinttccnineniinnn 27 iil TABLE OF AUTHORITIES CASES Page Alabama Power v. Costle, 636 F.2d 323 (D.C. n> S|, | seihinionee fodegampannsounbiipeeispeeonnaematis 18, 25, 26 General Motors Corp. v. United States, 496 U.S. : ae icickeississieectinibnibibthabsdatplbipaaabiiiathiiuioundbites 6 IBP, Inc. v. Alvarez, 126 S. Ct. 514 (2005)............ 23 New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005)... 10 Puerto Rican Cement Co. v. EPA, 889 F.2d 292 CEE, Be intecnessdeiertomnienscnntanleietseiincnsiieen an Sullivan v. Stroop, 496 U.S. 478, 484 (1990)........ 22 Union Elec. Co. v. EPA, 427 U.S. 246 (1976)....... 6 United States v. Alabama Power Co., (N.D. Ala.; Case No. 2:0)-cv-00152-VEH (Memorandum Opinion, Aug. 14, 2006))...........ccscsesesesesseeeees 5 United States v. Cinergy Corp., No. 06-1224 (7th 2 RSDAINE anaes elejdiedtbbadnenedegeniconnaiinie 23 Whitman v. American Trucking Ass'ns, 531 U.S. gg ___. RRIEERD LEARNER Savior ener 6 Wisconsin Electric Power Co. v. Reilly, 893 F.2d . ee EGE: CTD cinsitiatincsnacitinctsigtiisctunapentienen 19 STATUTES ae te PD iad icinecsitntstcieniceisinenniéintn 6 es 1 IED wetdbactciccccstanseaseininsimiatnitiann 14 Se ik ae FIRE dechaceesiathdnemeiennesinaenniiinacbingnitvinns 6 a PI cdincaiciehicaetinntgndbensnedunsasainhibeniionrite 6 42 U.S.C. § 7410(a)(2)(D), ()(4) 0. eccceeeeeteeeeenes 23 es Oe Fee OD seed icenetnsientociansenctintuiindasaes 20 Oe is Oe Pte aintinticrnccccentesestundiiciiapiinemunte 17 Pgs Tole | RRS NaEaS sieindinsbieddieanisapashidpbene 14 ie Pe Diecoscidipesvisisaniisiaeniisitnaniivesancae 15 eae I ciiisitnlhaaisicdtynetiianicsmeaiianaiindis 25 42 U.S.C. §§ 7491(b)2)A)...........eseceecessesesseesees 11 42 U.S.C. § 7501()).......... alanis nlartaaleadiibigidetitipted 11 BEST AVAILABLE COPY iv TABLE OF AUTHORITIES—Continued Page as OP tnkciincsccttnsintistsiiaddatannea 9, 20, 22 Se Cas FD icicisncitsintcsctdnsiaitinteiuaniaies 1] 42 U.S.C. §§ 7651(a)(28)-(29), 7651(b)..........00008 15 De Shs Te PP Oe ictitnntdvintscenetinbaesitcdedimecbanbiis 16 REGULATIONS © 40 C.F.R. §§ 51.166(b)(2)(iii); 60.14(e)(3)........... 25 SE, FR. Ba MD cctctsienaniscnsichetiiniibéniaiion 25 OTHER SOURCES | 116 Cong. Rec. 42,520 (1970).........cc.cccsscccccccesssenes 9 116 Cong. Rec. 19,206 (1970)............ccsscsccssseeess ) 116 Cong. Rec. 33,115 (1970)........cccccsccssccccsscecees 17 123 Cong. Rec. 18,019 (1977)..........c.ccccoccscovecsoeses 12 123 Cong. Rec: 18,021 (1977).........cccccccccscsscosesees 20 123 Cong. Rec. 18,040 (1977)............csscsseesseseeeeee 21 123 Cong. Rec. 18,022 (1977)........0..ccccrsessscevess 22 Environmental Policy Division (1978), Library of Congress, 95th Cong., 2nd Sess., A Legislative History of the Clean Air Act Amendments of 1977: a Continuation of the Clean Air Act Amendments of 1970 (1978), Washington, DC: US Senate Committee on Environment and FOES CRIES FOIE vcssevirtisscssincinnisnnistoveniasiieniibas 12 H.R. Rep. No. 91-1146 (1970) wo. ceeceeeeeteeeees 8, 20 H.R. Rep. No. 95-294 (1977) .........ccscssssseseseeees 11, 14, 22 H.R.4567, 99th Cong. (1986)..........cceceeeeceeseeeees 12 Peay PFU GAIN, LT PUER saceccsapsnsssecdnvnmncepentiiis 12 Pub. L. No. 91-604, § 4(a), 84 Stat. 1676, 1685- SOP oe sisndsnidieenedncimindincinasimeadiunpintdeeiinienamnniiles 17 S. Rep. No. 91-1196 (1970)......ccccccccsscssssesesesseseeee. 10 TER PUR. DRO RST COE F Peccsncrccvesssscosensittstetsainans 20, 21 ee POR CE, CUO F Pics cocinnctavnicnesiinmiinsanideniia 12 Vv TABLE OF AUTHORITIES—Continued Page S.31G6, 10ORs Comm, (196 7)....0:seccrrccecvseosecvscecsereseees 12 S.3GO, 1GOEs Cog, (196 7)..0..0ccvcescresecesecesccrsceeseees 12 ely Pte GIN, Cr Picececcccocesocenscecsecscecsscoseens 12 RS, eee 12 ey Se GE, COR ccescccccccccvscesnssccreccsesccenes 12 aris Se Ne BR icccececsceseocccinecsccosscsserpnenneees 12 Sen. George Voinovich, Chairman, Senate Sub- committee on Clean Air, Climate Change and Nuclear, “7he Clean Air Act's New Source Review Program: A Policy in Desperate Need iIITIT -isidos estan tnatetscnnncecinnmamansstessatotens 8 FEDERAL REGISTER 39 Fed. Reg. 36,946 (Oct. 15, 1974) .......ccccceeees 19 39 Fed. Reg. 42,510 (Dec. 5, 1974)... ..cccccecceeeeee 9, 22 39 Fed. Reg. 42,512 (Dec. 5, 1974)................ obaes 22 39 Fed. Reg. 42,513 (Dec. 5, 1974) ......5.ccccccceseseees 22 40 Fed. Reg. 58,416 (Dec. 16, 1975)............:c0000 13 41 Fed. Reg. 55,524 (Dec. 21, 1976)............c0c000 9 45 Fed. Reg. 52,677 (Aug. 7, 1980) .............ccec0ee 26 45 Fed. Reg. 52,691-92 (Aug. 7, 1980)................. 24 45 Fed. Reg. 52,704 (Aug. 7, 1980) .......c.cccesse0000 27 68 Fed. Reg. 61,248, 61,273 (Oct. 27 2003)......... 10 68 Fed. Reg. 61,248, 61,268 (Oct. 27, 2003)........ 10 68. Fed. Reg. 61,253 (Oct. 27, 2003) .........cccccceceee 27 © 69 Fed. Reg. 23,951, 23,986 (Apr. 30, 2004)........ 14 > og! > eae J: oe hase 7 Aras * wg >i - me reir § - Pa at adel ys . Loh oaeo"™ nae P) ae Pe I a 8 ( cai 7 4 - a, = - a - ay s — sh ae =? ; a agg oa mart). Or om La - > eee ° ee bt > <= SEA INFe So ae WP pr ts% f irr Ayes | re ae) -- ‘ etter igi % a? 7. a come mel Ee oe IN THE Supreme Court of the Anited States No. 05-848 ENVIRONMENTAL DEFENSE, ET AL., Petitioners, Vv. DUKE ENERGY CoRrP., ET AL., Respondent. On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit BRIEF OF AMICI CURIAE U.S. REPRESENTATIVE JOE L. BARTON IN SUPPORT OF THE RESPONDENTS STATEMENT OF AMICUS CURIAE IDENTITY AND INTEREST’ U.S. Representative Joe L. Barton files this amicus brief to correct Petitioners’ and others’ inaccurate representations of Congressional intent. Representative Barton participated in the lengthy legislative debates and discussions that led to the 1990 amendments to the Clean Air Act (“CAA” or the “Act”) ' Pursuant to Supreme Court Rules 37.3 and 37.6, the undersigned represents that (1) all parties consented to the filing of this brief, (2) no counsel for any party authored this brief either in whole or in part; and (3) no person or entity other than the above-named amici curiae and their counsel made any monetary contribution to its preparation or submission. 2 and, as Chairman of the House Committee on Energy and Commerce with Clean Air Act oversight responsibility has a unique interest in ensuring that the Act is correctly construed and properly and fairly implemented. INTRODUCTION Chairman Barton respectfully requests that this Court take note that the conclusion advanced by Petitioners and a num- ber of Amici Curiae Waxman, ef al. (hereinafter, “Petition- ers”) in Environmental Defense, et al., v. Duke Energy Corp.,’ et al—that the Act’s New Source Review program was intended to serve as an omnibus pollution control regime ultimately applicable to all existing sources electing to continue in operation—is wrong for reasons made quite clear by the Act’s history, language and implementation. First, Congress never intended New Source Review as a principal vehicle for achieving pollution control from existing sources. Had Congress intended such an outcome it would have said so, as revealed by the Act’s very deliberate construction. Instead, Congress intentionally chose a regu- latory regime where existing sources of pollution were principally regulated by the individual states. Moreover, as the program’s name implies, Congress intended New Source Review to address new sources of otherwise unregulated pollution—that is, newly constructed sources or those that undergo “modification” expanding their capacity to emit. The Act’s history is replete with clear illustrations that the counterintuitive reading advanced by Petitioners was not in fact Congress’ intent. That the radical policy shift Petitioners advocate would make significant Clean Air Act regulatory programs superfluous is but one example. Further, Congress expressly addressed and rejected Petitioners’ suggested policy both in the 1977 and 1990 CAA amendments. 3 The Fourth Circuit accurately determined that EPA’s 1980 “modification” rule must be consistent with Congress’ view that neither the New Source Review program (“NSR”) nor the New Source Performance Standards Program (“NSPS”) (hereinafter, “New Source Programs”) were intended to be the primary regulatory mechanism for reducing pollution from existing sources. SUMMARY OF THE ARGUMENT Congress’s goal in enacting and amending the Clean Air Act has always been to reduce air pollution to protect public health. Instead of requiring each plant to cut pollution by retrofitting new pollution control technologies, Congress chose pollutant-specific National Ambient Air Quality Standards (“NAAQS”). EPA was charged with periodically reviewing the standards and revising them in line with contemporary scientific information on public health needs. Meanwhile, Congress gave the States authority to implement the standards. Contrary to Petitioners’ arguments, Congress did not intend to confront stationary sources with an option of either shutting down or retrofitting new advanced pollution controls within a specified period of time. Unlike other CAA control regimes, Congress did not enact the New Source Programs to reduce emissions from existing sources operating in accordance with their original design capacity. Instead, pollution from existing sources was to be, and is, controlled through the air quality implementation plans developed by the States. In contrast, the New Source Programs’ goal was to spur technology development by matching the pollution contro] performance of new facilities or existing facilities building expansions with state of the art pollution contro] at the time the new source or expansion is initiated. Emissions from existing facilities not so “modified” remain within the discretion and purview of the individual States to devise 4 and implement actions to attain the NAAQS, subject to EPA approval, as provided in the 1970 and 1977 CAA Amendments. Congress did not intend that New Source’ Programs be triggered by activities that accomplish nothing more than enabling a facility to operate as constructed and within permitted limits. Had Congress so intended, it would have plainly said so in statutory language and in the legislative history. It did neither. Nor do New Source Programs otherwise disrupt Congress’ deliberately constructec hierarchy of Clean Air Act regu- latory programs for obtaining emission reduttions from existing sources, with NSR created to respond to activities adding new pollution for which States had not previously accounted in their role as primary regulatory authority over existing facility emissions. Construing the term “modification” to include “the most mundane activities” at existing sources, regardless of whether they actually create’ new pollution, requires believing that Congress intended to make redundant and/or obsolete other regulatory programs it went to great effort and detail to enact, and that Congress intended to drive the entire emission inventory attributable to the operations of major stationary sources down to the lowest, technologically feasible levels within a relatively short window of time. The structure and entire legislative history of the Act defy this conclusion. Petitioners’ view of NSR begs the question why Congress bothered to enact the highly complex CAA programs, such as the landmark Title I'V acid rain provisions and elaborate Title I reasonable further progress (“RFP”) provisions designed to independently achieve NAAQS attainment, which Petitioners would make redundant and unnecessary. This outcome defies credulity and all available evidence, seeking to institute “regulation by litigation instead of by notice and comment rulemaking.” See United States v. Alabama Power Co., (N.D. Ala.; Case No. 2:01-cv-00152-VEH (Memorandum Opinion, Aug. 14, 2006)). Congress developed an extensive hearing record, in the years-long debate over the 1990 Amendments, to assess the sufficiency of extant programs including NSR and NSPS to attain the large additional reductions in key air pollutants necessary to address acid rain. Congress concluded and plainly articulated that NSR was neither capable of secur- ing nor designed to secure emission reductions from exist- ing sources. Construing the NSR provisions established by the CAA Amendments of 1977 as Petitioners request would therefore ignore this history and also strip the subsequently enacted 1990 Amendments of any discernible meaning. It is axio- matic that such a construction defies congressional intent, specifically as reflected in at least the major 1977 and 1990 CAA revisions. This Court should therefore reject Petition- ers’ construction of the Act and the 1980 NSR regulations. ARGUMENT I. CONGRESS DID NOT INTEND THE NSR PROGRAM TO THREATEN ALL EXISTING FACILITIES WITH A “SUBMIT OR SHUT DOWN” ULTIMATUM UPON EXPIRATION OF SOME UNWRITTEN “GRACE PERIOD” OR “GRANDFATHERING.” A. The Clean Air Act Represents a Deliberate, Comprehensive Regulatory Regime Enacted by Congress. ; Congress deliberately titled its “New Source” Programs as such because these Programs were intended to cover new facilities, that is, new and otherwise unregulated capacity to pollute, or “new sources.” These include existing sources 6 that are “modified” to create new pollution not yet regulated under the CAA programs for existing sources of pollution, thereby protecting public health and welfare. The Act’s evolution clearly and obviously reveals this scheme. ° While Congress, through its 1970 Clean Air Act amend- ments, introduced a federal requirement for States to com- ply with the NAAQS, see 42 U.S.C. § 7409, Congress also reserved “primary responsibility” forthe States to attain and maintain NAAQS, see 42 U.S.C. § 7401(a)(3); see also Union Elec. Co. v. EPA, 427 U.S. 246, 269 (1976) (em- phasizing that Clean Air Act section 110 left to the States “the power to determine which sources would be burdened by regulations and to what extent”). This hierarchy reflects Congress’ considered judgment that State governments better under-stand local needs and circumstances and are thus best able to craft appropriately tailored programs to improve air quality. See, e.g, Whitman v. American Trucking Ass'ns, 531 U.S. 457, 470-71 (2001); id. at 493 (Breyer, J., concurring in part and concurring in the judgment); General Motors Corp. v. United States, 496 U.S. 530, 532-33 (1990). This same conclusion—that States are better suited to determine local conditions, needs and solutions—informed Congress’ decision to leave to the States with discretion over what specific retrofit measures were needed to attain the NAAQS. Thus, each State’s individual State Implementation . Plan or “SIP” articulates how best to achieve the Act’s air quality goals through emission reductions and controls from sources within each State’s border. See 42 U.S.C. § 7410. In the SIP, the State calculates an attainment-level “emissions — budget,” comparing it with the existing and projected base- line “business as usual” emissions level. The State is thus able to determine the required aggregate emission reductions, and to assign detailed emissions limitations to existing sources to achieve this required quantity of reductions. 7 It is noteworthy that Congress did assert federal primacy for regulating particular categories of pollution. These national programs generally focus on sources that individual States are unable to control such as automobiles and other mobile source standards. This reinforces State primacy over pollution sources they can control such as large stationary sources. The interpretation of the NSR program that Petitioners advance, by contrast, both subverts the State’s regulatory primacy in this area and significantly revises the CAA’s scheme by abandoning the concept of State discretion over how to regulate existing sources to attain the NAAQS. Finally, it is important to note that existing facility emis- sions from sources operating as constructed and permitted to operate and not installing or creating new capacity ensure attainment, and are, therefore, by definition not “increas[ing] pollution.” In establishing individual source emissions limits, States assume the maximum potential emissions from each existing source—based on around-the-clock operations, unless otherwise limited by an enforceable permit term. A State must demonstrate that with the controls implemented for each source it will attain the standard for the relevant criteria pollutant by the required attainment date, even with all sources operating at maximum capacity. As a result, the relevant SIP already takes into account all the existing air pollution capacity in a way designed to attain and maintain the NAAQS. There is, therefore, no new pollution capacity created by a source that repairs a broken or failing component so that the source can continue to operate as it was constructed and permitted by the State to operate, and then continues to operate in subsequent years in accordance with the SIP and its Clean Air Act permits. 8 B. Congress Deliberately Designed Different Pro- grams to Control New Versus Existing Sources. NSR has always been focused on regulating new capacity to pollute, that is, on managing new growth. It was never about obtaining additional reductions from existing facilities as Petitioners now advance. Such a result would blur and indeed obviate Congress’ clearly drawn lines. What Peti- tioners actually seek is judicial implementation of a 1997 internal enforcement policy memo to impose this radical policy change’ —€viscerating major programs specifically designed to regulate precisely those sources. 1. NSR was designed to address new sources. Although State-level SIP actions are the principal Clean Air Act mechanism to achieve NAAQS compliance, Congress also envisioned several CAA regulatory measures directed exclusively at new sources. Congressional considerations in adopting those new source provisions included avoiding industrial relocation, or “forum shopping,” which Congress addressed by calling upon new sources to install advanced pollution controls, irrespective of the local air quality needs, * See, e.g., “[A] 1997 enforcement memorandum leaked to the media . Shows EPA’s desire to force additional reductions in emissions by arbitrarily revising enforcement practices instead of the more appropriate regulatory process complete with its public comment and review requirements. In 1998, the EPA changed enforcement practices when they renounced the 1992 NSR interpretation in a proposed rule calling parts of the WEPCO decision a departure from Agency policy which should not be continued. . . . Finally, in 1999, the EPA filed NSR lawsuits against seven electric utility companies and an administrative enforcement order against the Tennessee Valley Authority, alleging NSR modification violations at 24 different facilities, reaching back as many as 22 years.” Sen. George Voinovich, Chairman, Senate Subcommittee on Clean Air, Climate Change and Nuclear, “The Clean Air Act's New Source Review Program: A Policy in Desperate Need of Reform,” found at — /I voinovich.senate.gov/policy_paper/nsr_whitepaper.pdf. 9 ‘again while reserving primacy over existing sources to the States. H.R. Rep. No. 91-1146, at 3 (1970). Despite this and select other new source-specific regulatory programs, Con- gress was clear that the NSPS was a narrow departure from the overall State primacy in abating air pollution. Numerous Members of Congress instrumental in the 1970 CAA amendments elaborated on this State/federal hierarchy in the CAA, including Representative Harley O. Staggers’ and Representative William L. Springer.* In 1974, EPA on its own initiative created the NSR program through the regulatory process.” Congress codified this program in 1977, incorporating in the process the NSPS definition of “modification.” See, e.g., 42 U.S.C. § 7501(4) (“The terms ‘modifications’ and ‘modified’ mean the same as > “The: enforcement of air pollution regulations is partly the responsibility of the States and partly that of the Federal Government. - The [1970 amendment] provides that the Federal Government shall have primary responsibility for the enforcement of performance standards for new stationary sources and hazardous emissions from stationary sources. The States on the other hand will have primary responsibility for the enforcement of State plans and the emission limitations provided for in those plans with regard to existing stationary sources.” 116 Cong. Rec. 42, 520 (1970). * Springer noted during the floor debates that NSPS was a “departure” from the ordinary division of responsibility, but that the departure was “sensible” because “[s]topping these extraordinary problems before they develop is best for the antipollution effort and it is also best for those who would build such installations and then find they could not operate.” 116 Cong. Rec. 19,206 (1970). * EPA established the Prevention of Significant Deterioration (“PSD”) component in 1974 for sources located in attainment areas, see Approval and Promulgation of Implementation Plans: Prevention of Significant Air Quality Deterioration, 39 Fed. Reg. 42,510 (Dec. 5, 1974), and the non- attainment sources were subjected to NSR through a 1976 EPA rule, see Requirements for Preparation, Adaption [sic], and Submittal of Imple- mentation Plans: Air Quality Standards; Interpretive Ruling, 41 Fed. Reg. 55,524 (Dec. 21, 1976). 10 the term ‘modification’ as used in section 7411(a)(4) of this title [the NSPS program].”) (emphasis added). As with other CAA decisions described herein, this was a deliberate act. By incorporating the NSPS modification definition into the NSR program, Congress ensured that existing sources traditionally addressed’ at the State level became subject to federal requirements to install new pollu- tion control equipment only when projects at these sources increased their capacity to emit pollutants—which is the clear threshold for becoming a “new source” of pollution. ; It was for these reasons that Congress never described NSR as a program to decrease emissions from existing sources. Despite its current litigation posture, EPA agrees—recently declaring that to interpret the Clean Air Act to “ensure that all major facilities eventually trigger NSR cannot be squared with the plain language of the Clean Air Act.” Prevention of Significant Deterioration (PSD) and Non Attainment New Source Review (NSK): Equipment Replacement Provision of the Routine Maintenance, Repair and Replacement Exclusion, 68 Fed. Reg. 61,248, 61,273 (Oct. 27, 2003). Similarly, EPA also acknowledges Congress’ view that SIPs, not NSR programs, were the primary vehicle for obtaining emissions reductions: “Rather than NSR, the Act’s primary mechanisms for achieving the emission reductions needed to attain or maintain NAAQS are State Imple- mentation Plans.” Brief of the Envtl. Prot. Agency 75, New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005). 2. NSR was not designed or intended to control Existing Sources. Beginning in 1970, Congress repeatedly considered and rejected schemes to impose on existing sources the mandatory contro] technology required of new sources. For example, in 1970, Congress considered and rejected imposing NSPS 1] - requirements on existing emissions sources covered by the SIP limits. See S. Rep. No. 91-1196, at 15-16 (1970). Then, during debate over the 1977 Clean Air Act Amend- ments Congress again specifically rejected attempts to impose universal retrofitting of all existing major stationary sources. See H.R. Rep. No. 95-294, at 185 (1977): Building control technology into new plants at time of _ construction will plainly be less costly than requiring ‘retrofit when pollution ceilings are reached. For example, testimony from the electric utility industry indicates that it costs about 25 percent less to purchase and install flue gas desulfurization technology on’a new plant than it would cost to retrofit that plant subsequently. - Congress’ reasoning is inescapable: requiring NSR and the installation of advanced pollution controls would be prohib- itively expensive for existing sources. Congress therefore rejected using the approach of across-the-board, technology- forcing regulation for existing sources, favoring instead narrowly tailored, State-administered schemes to achieve emission reductions from existing sources. See, e.g., 42 U.S.C. §§ 7491(b)(2)(A) (providing for “best available retrofit technology” for a limited class of existing facilities), 7502(c) (providing for “reasonably available control tech- nology” (“RACT”) for certain existing facilities in non- attainment areas). In-this regard, the mandatory RACT requirement was limited to helping provide for the afore- mentioned “reasonable further progress” (“RFP”) to ensure “attainment of the applicable [NAAQS] by the applicable date.” 42 U.S.C. § 7501(1). Congress certainly would have seen such a detailed scheme for existing sources as unnecessary if it had already required, as Petitioners suggest, that NSR mandate eventual universal retrofitting of advanced pollution controls on all existing 12 facilities.° Indeed, universal application of new source control technology contradicts Congress’ express belief that such retrofitting would be unnecessary because of other targeted, existing source-level controls. As made clear by the principal architect of the 1977 Clean Air Act Amendments, Senator Edmund Muskie: “It is [Congress’] intent that ‘reasonable further progress’ means pollution control will reduce emissions at a rate that will lead to attainment of the ambient standards in the time required.” 123 Cong. Rec. 18,019 (1977); Environmental Policy Division (1978), Library of Congress, 95th Cong., 2nd Sess., A Legislative History of the Clean Air Act Amendments of 1977: a Con- tinuation of the Clean Air Act Amendments of 1970 (1978), Washington, DC: US Senate Committee on Environment and Public Works Print. Accordingly, the RFP requirements, including RACT-level controls, were intended to attain the NAAQS without additional reductions secured through the ‘non-attainment NSR program. This pattern continued during the 1980s when Congress repeatedly considered and rejected legislative proposals to impose, on existing coal-fired boilers, the choice between retrofitting with new source control technologies and shutting down. See §.321, 100th Cong. (1987); $.316, 100th Cong. (1987); S.300, 100th Cong. (1987); $.2813, 99th Cong. (1986); $.2203, 99th Cong. (1986); $.2200, 99th Cong. (1986); H.R.4567, 99th Cong. (1986); S.52, 99th Cong. (1985); H.R.5555, 97th Cong. (1982). That Congress © As explained in both the utility and industry amici briefs, the types of projects that Petitioners contend trigger NSR are similar io projects undertaken every year across industry by every industrial facility merely to maintain the ability to operate as constructed and permitted to operate. - If one accepts at face value the complaints filed by citizen groups and the Government in the NSR enforcement initiative, every individual! industrial facility in this country has routinely triggered NSR preconstruction permitting under the NSR program year after year since 1980. 13 bothered considering these sector-specific bills reveals its understanding that all existing facilities do not ultimately trigger NSR. Rejecting the proposals only affirms Congress’ intent that ultimate NSR coverage of all industrial facilities could not be the case. The present EPA NSR enforcement initiative implausibly assumes that the entire electric utility industry, refining industry, and much of the American indus- trial sector were for decades all in massive non-compliance with existing regulatory requirements. That Congress engaged in the major 1977 and 1990 rewrites of the Clean Air Act without taking notice of such an anomaly, were it real, only further exposes the unsupportable nature of EPA’s litigation position. In sum, the history of the Clean Air Act prior to its 1990 Amendments manifests repeated congressional rejection of Petitioners’ preferred “retrofit or shut down” mandate to control emissions from existing sources. Instead, Congress left decisions regarding existing-source pollution primarily to the States and reserved authority to EPA only in limited areas consistent with the statutory hierarchy, explicitly avoiding the massive economic disruption that would follow from a heavy- handed, top-down approach to controlling pollution from existing sources. ” In fact, EPA had the same understanding when it included the reconstruction provision in the NSPS rules. Reconstruction is an excep- tion to the requirement that an emissions increase triggers NSPS for an existing unit. When an existing unit expends 50% or more of the cost of a comparable entirely new facility, then that expenditure triggers appli- cation of NSPS. This is because EPA, like Congress, understood new source controls rarely apply to existing sources, and thus only required retrofitting new source controls when creating new and unregulated pollution or spending so much on an old facility that it becomes in essence a new facility. 40 Fed. Reg. 58,416 (Dec. 16, 1975) (final rule); 39 Fed. Reg. 36,946 (Oct. 15, 1974) (proposed rule), id. at 36,948 (“The purpose of this proposed [reconstruction] provision is to discourage the per- petuation of a facility, instead of replacing it at the end of its useful life with a newly constructed facilitv.”). 14 3. NSR was deliberately designed to address growth. As Congress repeatedly confirmed that mandatory new source pollution control retrofits from existing sources was not the law, Congress also staked out a deliberate role in the overall Clean Air Act scheme for EPA’s regulatory PSD and NNSR programs. The 1977 Clean Air Act Amendments established a PSD “increment” program menaging growth in areas meeting air quality standards to ensure that air quality did not significantly deteriorate. See 42 U.S.C. § 7470 (PSD program is intended “to protect health and public welfare from any actual or potential adverse effects . . . notwith- standing attainment,” while ensuring that economic growth “will occur in a manner consistent with the preservation of existing clean air resources.”) As EPA recently explained, “the NSR program is a growth measure and is not specifically designed to produce emission reductions. Instead, its purpose is to allow new source growth to occur without interfering with an area’s ability to attain.” Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard, 69 Fed. Reg. 23,951, 23,986 (Apr. 30, 2004). NSR’s focus on new emissions growth, and not on in- creased utilization of existing permitted emissions capacity, reflects Congress’ balancing of economic and environmental concerns. The Clean Air Act repeatedly took care to note its goal, in addition to protecting and improving the nation’s air quality, of regulating in a fashion that is protective of the American economy. 42 U.S.C. § 7401(b)(1). The purpose of the 1977 Amendments, which included the NSR provisions, was to “insure the protection of the public health and the environment . . . while at the same time considering the energy and economic needs of this Nation.” H.R. Rep. No. 95-294, at 34-35 (1977). Futher, Congress declared that the occurrence of economic growth is among the purposes of the PSD provisions in the Clean Air Act. 42 U.S.C. § 7470(3). 15 Petitioners ignore these express considerations by predicating mandatory retrofit of new source control technology on the act of performing maintenance on existing productive capacity. Thus, while Petitioners cite the Act’s purpose in their attempt to support the need to interpret “modification” differently in NSPS and PSD, they conveniently avoid citing the entirety of the Act’s stated purpose. 4. In the 1990 CAA Amendments, Congress reaffirmed previous regulatory choices, and strengthened controls on existing sources, without altering NSR’s role in the hierarchy. The 1990 Clean Air Act Amendments further affirm that NSR does not mandate all existing units eventually to retrofit mandatory new source control technology, and that NSR does not apply when existing power plants undertake activities not changing their original design capacity, even if those activities extend the source’s productive life. A major objective of the 1990 Clean Air Act Amendments was to mitigate potential environmental damage from acid rain. The major pollutants implicated in acid rain are sulfur _ dioxide (“SO”) and nitrogen oxides (“NO,”). Consequently, Congress required significant reductions in SO) and NO, emissions. When considering potential control tools, Con- gress understood that electric utilities that were never subject to the NSPS or NSR programs were undergoing refurbish- ment and life extension work, that they would be operated without new source pollution controls beyond 2010, and that their longer operating lives and increased utilization would cause a steady rise in national emissions in compliance with extant Clean Air Act permits and regulations. See 42 U.S.C. §§ 765 1(a)(28)-(29), 7651(b). Congress nonetheless elected against requiring each exist- ing power piant to retrofit new source pollution control equipment, favoring instead a national cap-and-trade regime 16 designed to reduce SO emissions much more efficiently and at much lower cost than by mandating uniform technology. Congress also achieved a reduction in NO, emissions of approximately two million tons under Title IV, and addressed the long-range transport of NO,. 42 U.S.C. § 7651(b). These provisions, not NSR, were designed to generate massive reductions in air pollution from existing sources. Unlike applying NSR to existing facilities, the Title IV acid rain program did so with economic efficiency, and deliberately so. Congress’ decision to create the Title IV acid rain program is important for three reasons. First, it shows yet again Congress’ understanding that NSR is not triggered when existing facilities undergo life extension projects allowing them to operate within existing, regulated capacity. Second, Title IV demonstrates that Congress deliberately avoided requiring universal retrofitting of new source pollution controls on existing. coal-fired facilities. Third, Congress pioneered the use of “market-based” tools (cap-and-trade) rather than command-and-control measures (such as NSR), for the explicit purpose of striking a balance between pollu- tion abatement and economic prosperity. These assumptions underlying the 1990 Amendments regarding power plant operation, and the very cap-and-trade mechanism that Con- gress created in this legislation, belie claims that NSR required all existing units to “retrofit or shut down.” C. Grandfathering in the Clean Air Act; Congress did not play Petitioners’ argued “expectations” game. Despite ample opportunity, particularly including during significant amendment of the Clean Air Act, at no time between 1970 and 1990 did Congress statutorily mandate immediate reductions in air emissions from existing facilities, exempt sources entirely from the need to reduce emissions, or 17 impose pollution cuts on existing sources after “grand- fathering” them for some limited period of time. In instances where Congress instituted limited “grand- fathering,” the relevant statutory language is clear and unam- biguous. No rigorous search for unexpressed intention ‘is required. For example, the 1970 Clean Air Act Amendments provided a 90-day grace period for existing sources to bring their emissions of Hazardous Air Pollutants (“HAPs”) to within prescribed limits. Pub. L. No. 91-604, § 4(a), 84 Stat. 1676, 1685-86 (1970) (enacting 42 U.S.C. § 7412); see also 116 Cong. Rec. 33115 (1970) (statement of Senator Prouty: “An innovative feature of the [1970] bill, in keeping with the urgency of the problem, is the establishment of definite deadlines.”) Likewise, section 112, as revised by the 1990 Amendments, gives existing sources three years to comply with the Maximum Available Control Technology for air toxics. 42 U.S.C. § 7412(i)(3). Instead of a definite time-measured mandate, a source triggers NSR when and if it undertakes activity that creates, new, heretofore unregulated, pollution. Petitioners argue that the NSR program mandates some unspecified grandfathering that eventually forces all sources into NSR. This confuses an expectation—that some number of existing sources might eventually be replaced with new sources—with a statutory mandate ultimately compelling installation of advanced controls on all existing sources. Manifesting this confusion is Petitioners’ misplaced reliance on a passage from the House report on the 1977 amendments quoting an industry representative’s statement to the effect that “[pjroven FGD [flue gas desulfurization] systems are justified for new plants utilizing higher sulfur fuel where sizable emission reductions are needed to meet new source performance standards. * * * [I}t is imprudent to backfit FGD into existing plants, especially older units facing retirement within 10-15 years.” Certainly Congress would 18 make such a significant policy decision in a more direct and explicit way.® Yet even a cursory examination of the quoted passage reveals that the “10-15 years” reference is not a limitation on the universe of existing plants for which backfitting FGD would be imprudent. It is simply a specific illustration—a subset of the universe of existing units for which such backfitting would be “especially” imprudent. Such practical considerations aside, what this report actually says is that some Members of Congress may have expected that some existing power plants would be retired and new ones constructed. And this indeed has occurred. It certainly does not, however, indicate that Congress has adopted statutory lanyuage designed to compel this outcome. Building upon this misconstruction of the 1977 CAA Amendments’ legislative history, Petitioners proceed to misconstrue further the relevant case law to bolster their argument. For example, Petitioners reinterpret the D.C. Circuit opinion in Alabama Power v. Costle, 636 F 2d 323, 400 (D.C. Cir. 1979)}—which actually described the 1977 Clean Air Act Amendments as intending to “grandfather existing Industries,” but not create a “perpetual immunity from all standards, under the PSD program”—from its long- ® Current and former Members of Congress Waxman, Markey, Rooney, Maguire, Ottinger, Moffett and Anderson (“Waxman, et al. Amici”) have filed an amicus curiae brief in this case. Amici Waxman, ef al., particu- larly elevate this remark (Amici Waxman, ef al. Brief at p. 21) stating, “Congress's decision to allow these sources to continue operating without NSR controls was based on the expectation that many ‘older units facfe] retirement in 10-15 years,’ meaning that they would have to be refur- bished —and controlled—if they were to continue operating.” Certainly Congressman Waxman appreciates the nature of estimates. See, ¢.g., Cong. Waxman letter to Congressional leadership reminding that estimates offered to and/or relied-spen by government are just that and can prove to be conservative (in the context of the Department of Home- land Security cost estimates), at http://www .democrats.reform.house.gov/ Documents/20040827 | 407 14-65532.pdf. 19 understood meaning and scope to now stand for a proposition that the court never addressed, specifically, that increasing pollution for PSD purposes means something~ more than increasing the capacity of the facility to emit. In Alabama Power, no party challenged the provision of the 1978 PSD rules requiring an increase in the “potential emission rate” of a source for there to be a “modification.” Thus, the Alabama Power court’s explanation that “Congress wished to apply the permit process . . . only where industrial changes might increase pollution,” and its related observation regarding “perpetual immunity,” merely recognize that existing sources become subject to NSPS and PSD when they undertake section 111 modifications. Similarly, statements by the Seventh Circuit in Wisconsin Electric Power Co. v. Reilly, expressing concern over opening “vistas of indefinite immunity from the provisions of NSPS and PSD,” must be read in the context of the Circuit’s rejection of Wisconsin Electric Power’s. argument that “massive” and “unprecedented” projects, enabling facilities to increase their hourly emitting capacity by up to 40 percent, were routine maintenance that failed to trigger NSR. 893 F.2d 901, 909-10 (7th Cir. 1990). Il. THE NEW SOURCE PROGRAMS MODIFI- CATION RULE APPLIES ONLY TO EXISTING SOURCE CHANGES THAT CREATE NEW AND UNREGULATED POLLUTION. ~ The definition of “modification,” which is the trigger for every new source program in the Clean Air Act, reflects Congress’ deliberate and fundamental policy distinction between regulation of new sources of pollution and existing sources of pollution. This understanding has been a central feature of the Clean Air Act since 1970. 20 A. The Modification Rule focuses on new emis- sions capacity. The New Source Programs modification rule arises from the 1970 Clean Air Act Amendments and the NSPS program they created. At that time, Congress required review of “modification” for reconstruction as well as “construction” activities because both can create new capacity to emit. H.R. Rep. No. 91-1146, at 10 (1970) (“[N]ew sources may take the form either of entirely new facilities or expanded or modified facilities. .. .”). The Clean Air Act defines “modification” as any physical or operational change “which increases the amount of any air pollutant emitted by such source.” 42 U.S.C. § 7411(a)(4). Accordingly, the “modification” defi- nition from its inception focused on activity creating new (i.g., unregulated) emissions, and until this enforcement was initiated, EPA never interpreted the term “modification” to the contrary. It is inarguable from the text and structure of the 1977 Amendments that Congress carried over this NSPS meaning of “modification” to the NSR program. See, e.g., 42 U.S.C. § 7501(4). The legislative history of the 1977 amendments confirms that Congress focused NSR on new emissions—not on the use or maintenance of existing facilities and their already-regulated emissions capacity. S. Rep. No. 95-127, at 55 (1977) (Congress determined that “some mechanism | was] needed to assure that before new and expanded facilities are _ permitted, a State demonstrate that these facilities can be accommodated within its overall plan to provide for attainment of air quality standards.”) (emphasis added); see 123 Cong. Rec. 18,021 (1977) (Senator Muskie, one sponsor of the 1977 Clean Air Act Amendments, noted that the NSR procedures “apply only to new major emitting facilities and do not affect existing facilities”); S. Rep. No. 95-127, at 29 (1977); see also 123 Cong. Rec. 18,040 (1977) (statement of Senator Randolph) (“{T]he nondcterioration section [PSD] 21 applies only to major new emission sources. It does not relate to sources already in existence.”). As illustrated, supra, as part of the SIP process, States review and regulate emissions capacity from their resident sources. So long as the SIP assessment of the regulated emissions capacity of a source is not disturbed, air quality remains protected no matter how many hours the source operates or what physical changes are made to enable it to continue such operation. Congress specifically intended the term “modification” to encompass only activity that increases the capacity of a facility to emit—not the use of existing capacity as constructed and permitted, recognizing the redundancy inherent in reviewing these sources again unless the source is changed in a way that creates new, heretofore unregulated emissions. See Puerto Rican Cement Co. v. EPA, 889 F.2d 292, 298 (1st Cir. 1989) (“[T]he statute refers to the ‘construction’ of facilities, not to increased use of existing facilities.”). B B. NSPS and NSR are closely related programs | sharing common features, including the same definition of “Modification.” 1. Congress deliberately defined NSR modif- cation by reference to NSPS modification. Far from scrapping the NSPS model and beginning anew when crafting NSR, Congress instead modeled the statutory NSR program after EPA’s 1974 regulatory PSD program, in which EPA defined “modification” precisely-as in the NSPS program, emphasizing the Administrator’s intent for “the definition of modification under Part 52 [addressing PSD] to be consistent with the final definition of this term under Part 60 [governing the NSPS program].” See 39 Fed. Reg. at 42,513 (Dec. 5, 1974). 22 In 1977, Congress codified the NSR program, incor- porating the NSPS definition of modification into the NSR definition. See, e.g., 42 U.S.C. §7501(4) (“The terms ‘modi- fications’ and ‘modified’ mean the same as the term ‘modi- fication’ as used in section 7411(a)(4) of this title [the NSPS program].” ) (emphasis added).” That Congress expressly incormorated the NSPS definition into the statutory NSR program is not simply a case in which two related programs, in the same Act, have identical words that should normally be given the same meaning. See Sullivan v. Stroop, 496 U.S. 478, 484 (1990). Here, Congress expected that NSR review would occur in conjunction with NSPS review and that the process would be much the same. H. Rep. No. 95-294, at 144-45 (1977). This was also a major concern for EPA when creating the regulatory PSD program. See Approval and Promulgation of Implementation Plans: Prevention of Significant Air Quality Deterioration, 39 Fed. Reg. 42,510, 42,512 (Dec. 5, 1974). Appropriately, EPA itself has recognized the close ties between the NSPS and NSR programs. 68 Fed. Reg. 61248, 61268 (Oct. 27, 2003) (“The NSR program’s scope is closely related t. the scope of the NSPS program.”). In fact, given the explicit cross- * Congress codified EPA’s regulatory program in the 1977 amend- ments with some alterations, for instance, strengthening the statutory NSR program’s contro] technology requirements from those required by EPA in the regulatory program, reflecting the concern expressed at the time by Senator Muskie that there existed a “gap” between “actual best available technology and what has been required under new source performance standards.” 123 Cong. Rec. 18,022. Senator Muskie’s statement, that “the record to date under the [NSPS] approach has been disappointing,” 123 Cong. Rec. 18,022 (June 8, 1977) (quoted in Pets. Br. 5), specifically referred to the difference in “control” technolegy between BACT and NSPS, not to the scope of applicability of NSPS or PSD to activities at existing facilities. See id; see also id. at 18,018 (The new NNSR provi- sions “establish controls more stringent than the [pre-existing NNSR] ruling by EPA.”). 23 incorporation between the PSD and NSPS definition, the application of NSPS and “major modification” review under NSR should be identical. See /BP, Jnc. v. Alvarez, 126 S. Ct. 514, 523 (2005). Here, Congress once again acted deliberately, incorpo- rating by reference an existing term having a recognized, accepted meaning. Congress failed to qualify “mean the same as” with, for example, “but only for statutory pur- poses, not for regulatory implementation purposes.” Such qualification is precisely what the court in United States v. Cinergy Corp., No. 06-1224 (7th Cir. 2006) would read into the statute. 2. NSPS and NSR share overlapping regulatory goals. Unable to find support for their position in the statutory language, Petitioners argue that the NSPS and PSD programs have fundamentally different purposes requiring that cov- erage of projects undertaken at existing facilities be broader under the PSD program than under the NSPS program. Specifically, they argue that because the PSD program is an “ambient-based” program, whereas NSPS is a “technology- based” program, preconstruction permit coverage must be coterminous with the activities that consume the PSD “increments.” These claims are specious. Petitioners’ argument fundamentally ignores that, starting with the 1970 CAA, both technology requirements and ambient-based preconstruction review were triggered by NSPS “modification” activities. Specifically, under the 1970 Act, preconstruction review to ensure compliance with the NAAQS was triggered by NSPS “modification,” 42 U.S.C. §§ 7410(a)(2)(D), (a)(4), that being activity that created new pollution. By contrast, preconstruction review was not triggered by existing emissions already reviewed and regu- lated under the SIP—like emissions resulting from increased 24 hours of operation or from switches to an alternate fuel that the source was designed to accommodate. In other words, like nearly everything else in the Clean Air Act regulatory scheme, the decision to exclude these changes from the definition of “modification” under the 1970 Act emerges as a deliberate decision in the context of a regulatory regime where SIPs regulate emissions from existing sources at full capacity to ensure attainment and maintenance of the NAAQS. Under this regime, because all pollution up to an NSPS “modification” would be fully accounted for in the SIP, variations in operation of existing capacity would not trigger preconstruction review (as EPA made clear in its early regulations defining modification for NSPS and PSD), while “new pollution” that had not been reviewed would have to undergo review to assure “attainment and maintenance” of NAAQS." Furthermore, arguments seeking to defeat Congress’ instruction that “‘modifications’ and ‘modified’ mean the same as the term ‘modification’ as used in [the NSPS program],” by extrapolating different meanings between the terms through touting differing purposes of the PSD and NSPS programs, also ignore the fact that some activities that could cause NAAQS exceedances or consume the PSD “increment” are not, and have never been, regulated under the preconstruction permit programs. For instance, Petitioners suggest that because the “baseline” for increment consump- tion accounting purposes in PSD areas is based on an area’s air quality, any activity that increases “actual emissions” and potentially affects the air quality must necessarily trigger PSD preconstruction review. Pets. Br. at 40-41. This is incorrect. '° For such reasons, in its preamble of the 1980 Rules, EPA articulated disagreement with commenting parties that had argued the focus of NSPS was based solely on technology, explaining that “the decision to develop the NSPS is clearly based on ambient air quality concerns.” 45 Fed. Reg. at 52,691-92 (Aug. 7, 1980). 25 Petitioners’ view conflates “baseline” for purposes of in- crement accounting, which is the date of the first PSD permit application filed in a PSD area, see 42 U.S.C. § 7479(4) (“[t]he term ‘baseline concentration] means, with respect to a pollutant, the ambient concentration levels which exist at the time of the first application for a permit in an area subject to this part”), with “baseline” for applicability purposes (i.e., for determining whether a particular activity increased emissions and thus was a “modification”), which is a period shortly before the activity, see, e.g., 40 C.F.R. § 52.21(d)(21)(ii) (establishing as a baseline date “a two-year period which precedes the particular date and which is representative of normal source operations’). These two dates can be separated by years—indeed, decades, for projects conducted in the late 1980s through 2000, as is the case here—and thus bear no relationship to each other. Moreover, even where a correspondence between the two exists, Petitioners’ argument proves too much. As recognized in Alabama Power vy. Costle, a fuel switch to a higher- emitting fuel allowed under a facility’s permit potentially consumes increment, but has always been excluded from PSD review. 636 F.2d at 378. In the court’s own words, this argument “conflates the different yet complementary func- tions of [pre-construction] review and calculation of incre- ment consumption.” Jd. EPA’s longstanding- definition of “modification” in both its NSPS and NSR programs has — excluded from the definition increased hours of operation within permitted capacity. 40 C.F.R. §§ 51.166(b)(2)(iii); 60.14(e)(3). Yet, under Petitioners’ reasoning every exclusion under the PSD rules (fuel switch, production rate, hours of operations, efc.) would be illegal, since every exclusion nec- essarily describes activity that potentially consumes incre- 26 ment but that is not subject to pre-construction review. This _ Cannot be correct."’ Arguments about the ostensibly different purposes of the NSPS and PSD programs ignore the fact that, like the NSPS program, the PSD program is both technology-based and ambient-based. As discussed above, the 1970 Clean Air Act Amendments combined a technology-based NSPS program, see 42 U.S.C. § 7411, and an ambient, NAAQS-based “pre- construction” program, see 42 U.S.C. § 7410(a)(4), with the same trigger for projects at existing facilities—an NSPS “modification.” Under the 1974 PSD program, a “tech- nology-based” program requiring installation or the best avail- able contro] technology (“BACT”) and an “ambient-based” program designed to protect “PSD increments” in attainment areas were merged in one PSD program. In this program, the permits required that new emissions capacity comply with BACT-, NAAQS and the PSD increment program. anh '' EPA recognized as much, again in the 1980 Rules preamble, discussing how States can address this issue: First, noting that the increments must be protected separately from any pre-construction requirements, EPA explained that the State must periodically review air quality and take “corrective action” if the increments are exceeded. This is one of the aspects of the PSD programs that Congress specifically “tightened” in 1977. See Alabama Power v. Costle, 636 F.2d at 361-64. Under the 1974 PSD rules, there was no requirement (or authority) to take action to protect the increments if they are exceeded due to “non- modification” activity (e.g., fuel switch). 45 Fed. Reg. at 52,677 (Aug. 7, 1980). Second, EPA explained that States could “revise SIPs and/or issue operating permits so that SIP requirements and permits reflect actual source operating conditions.” /d at 52,721-22. If the State does the latter—i.e., revise a source’s permit to limit hours of operations, as the example in the preamble posits, see id at 52,70S—any increase in hours in excess of an enforceable permit limit, whether made possible by maintenance work or not, would trigger PSD. If the permit does not restrict hours, however, there is no basis in the regulations, or in logic, to differentiate between the two types of increases in hours of operation of the existing unit. 27 CONCLUSION Electric utility operations routinely fluctuate by the hour, day, month, and year. This is due to variable demand driven by many factors including the weather, economic health, and the availability of other units on the system. Utilities keep their units in good repair to respond to the market’s fluctu- ations. They are issued permits that do not limit their operating hours, enabling them to meet these obligations.’ To ensure that these fluctuating source-specific emissions do not interfere with attainment or maintenance of the NAAQS, State regulators at the technical air quality planning level issue permits to utility sources that either reflect a specific emission limit or assume round-the-clock operations, and translate the relevant pollution numbers into the overall States’ attainment and maintenance plans. At the more basic level, this approach to air quality planning reflects the fundamental distinction between existing source pollution, which is fully accounted for and subjected to a NAAQS compliance-driven level of control, and green- field units and modified sources creating “new” pollution. The Clean Air Act’s language and history make clear that the NSR and NSPS programs were always intended by Congress to address and apply to this new pollution (emissions from new sources). Old pollution (emissions from existing sources), no matter how it fluctuates within the universe of emissions generated by existing sources, is controlled by other (i.e., non-NSR) Clean Air Act programs. In their pursuit of a major policy shift repeatedly rejected by Con- ? EPA has consistently recognized that Congress did not intend to regulate such fluctuations. See 68 Fed. Reg. 61,253 (Oct. 27, 2003). (“{A}pplication of the major NSR program to ‘modified’ plants is [not] desiened to require existing plants that are continuing to operate in a manner consistent with their original design to curtail their rate of production or hours of operation beyond limitations set forth in their existing permits.”); see also 45 Fed.Reg. 52,704 (Aug. 7, 1980). 28 gress, Petitioners make “grace period” or “grandfathering” arguments and other similar claims that fundamentally misstate and misconstrue all of the major policy choices made by Congress throughout the entire life of the Clean Air Act. In turn, the common definition of “modification,” to be applied in the context of the NSR and NSPS programs, was developed in response to, and is driven both by these overarching regulatory policy imperatives and by Congress’ decision to regulate old and new pollution in fundamentally different ways. Petitioners indicate that failure to adopt their desired policy shift will result in a policy hole in America’s air pollution regulations. To the contrary, revising the definition “of modification” along the lines suggested by the Petitioners so as to apply NSR to the fluctuating emis- sions of already-regulated pollution would defeat Congres- sional intent and effectively emasculate the non-NSR Clean Air Act programs. The Court should refuse to indulge in such a fundamental re-write of one of this nation’s most important and carefully balanced regulatory statutes. Respectfully submitted, GEORGE C. LANDRITH CHRISTOPHER C. HORNER FRONTIERS OF FREEDOM P.O. Box 69 Oakton, VA 22124 (703) 246-0110 September 15, 2006 Counsel for Amici Curiae U.S. Representative Joe L. Barton i it a = ‘ ee oe A ee Ic ta. She Sats hoe nk ee el Bi ee? ye -< @ tg J . + 5s" La Ate r eae FILED No. 05-848 JUL 2 1 2006 OFFICE OF THE CLERK In The Supreme Court of the Anited States ¢ ENVIRONMENTAL DEFENSE, et al., Petitioners, Vv. DUKE ENERGY CORP., et ai., Respondents. ¢ On Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit ¢ BRIEF OF LAW PROFESSORS JOHN E. BONINE, OLIVER A. HOUCK, RICHARD J. LAZARUS, EDWARD LLOYD, THOMAS O. MCGARITY, ROBERT V. PERCIVAL, ZYGMUNT J.B. PLATER, ARNOLD W. REITZE, JR.., WILLIAM H. RODGERS, PETER M. SHANE, AND MARK SQUILLACE AS AMICI CURIAE IN SUPPORT OF PETITIONERS Sd JARED A. GOLDSTEIN ROGER WILLIAMS UNIVERSITY SCHOOL OF LAW Ten Metacom Ave. Bristol, Rhode Island 02908 (401) 254-4594 JULY 2006 Counsel for Amici Curiae a COCKLE LAW BRIEF PRINTING CO (800) 225-6964 OR CALL COLLECT (402) 342-2831 TABLE OF CONTENTS Page ee Ge FAT IE BEND vctsccccccccnescosesenscsonssecesesescnses ii INTERESTS OF AMICI CURIAE ..................ccceeeeeeeees 1 ITED sucicestncicsbiaidecniitininhinepnaiiiianatsadnsegeisiiadiibnieginateines 4 SUMMARY OF ARGUMENT. ..................:::ccceesseeeeeeeeees 6 ET iiibistichesiliisniensinsigtine-cctaitassttininiinnsiniciaiiiieiibipaitin 8 I. THE PLAIN MEANING OF THE “MODIFI- CATION” DEFINITION AND THE UNMIS- TAKABLE PURPOSE OF THE PSD PROGRAM REQUIRE AN ACTUAL ANNUAL STE DIED acinesesssesncnmnciscnseetnonisnetsinteacoten 8 II. THE PRESUMPTION OF CONSISTENCY DOES NOT SUPPORT THE INVALIDATION OF THE ACTUAL ANNUAL EMISSION TEST.................. 13 A. This Court Has Unanimously Rejected the Argument that a Term Must Be Construed Identically Whenever It Is Defined in a Sin- ip RICE TIRED onicsccccessevecocewssnsccsens 13 B. Rowan Does Not Support the Fourth re si siiecetncniiiiineincientebinioninnss 17 C. The Actual Annual Emissions Test Would Be Valid Even if EPA Were Required to Employ the Same Test for the NSPS and I cies scicipctalinctichdisdceiiaantinhadieibiistahidigaeis 21 SEE cicntirstnsvesasconasstanenecnintincnsenseiininvasnaiusbeetindn 24 ii TABLE OF AUTHORITIES Page CASES Ala. Power v. Costle, 636 F.2d 323 (D.C. Cir 1979)........... 11 Alaska Dept. of Environmental Conservation v. se as Ee ED sieninhnvsndiiennnsdacadinindsntianicinentavions 12 Atlantic Cleaners & Dyers, Inc. v. United States, Se an, HE IT A cshcsinniocinhelncesecestienhciealeatesotealiep 7, 13, 14 Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984)....... 6, 19, 20 Christensen v. Harris County, 529 U.S. 576 (2000).......... 19 Cohen v. de la Cruz, 523 U.S. 213 (1998)................ccce eee 22 General Dynamics Land Systems v. Cline, 540 U.S. Ee TED benivcdkonachinsincishetasadsdiaiialinnhiaaaniaiuindsenivies 14,15 Lee v. Madigan, 358 U.S. 228 (1959) ....0.0... eee 13 New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005).....10, 11, 17, 23 N. Plains Res. Council v. EPA, 645 F.2d 1349 (9th a aa 21 Robinson v. Shell Oil Co., 519 U.S. 337 (1997).... 7, 15, 16, 17 Robinson v. Shell Oil Co., 70 F.3d 325 (4th Cir. 1995)......... 15 Rowan Cos. v. United States, 452 U.S. 247 ig a te a 7, 8, 17, 18, 19, 20 United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365 (1988) ................. 14 United States v. Cleveland Indians Baseball Co., I 14 Wachovia Bank v. Schmidt, ___ U.S. ___, 126 S.Ct. ERE EST er SN LORY Ie oe OC AO OR 14 ili TABLE OF AUTHORITIES -— Continued Page STATUTES IERIE Ee Pa EE Oe TE OTE 4,21 SG Ue I iinestiicchecbinciininbinunceienetsistnkenuntoel passim a AD acistinsiihsinieiacaiinecdabupiiedisdeinbighabeiandetmacsit 4,11, 12 A I ii aisle crcnbesigeintesine diaendieibinibiodeiaiitih 4,11 i tel 11 Se URS Te I taicakiaissciessadisindiinesheiibindelndessiatedndhisibsaenalsieaibidbile 12 eR ir IIc ses Sissi cs tyolesiielbbinisdestineieltead pod icondetniclin deidbaddaitis 11 REGULATIONS ETI TTI ictincealan csi cis chctaigbcnnaainseieiadbnaiadnidialocaloe 5 ERR tele DD Ma REY PTO 5 MISCELLANEOUS Norman J. Singer, Statutes and Statutory Construc- NE: MII didcicrbsitaikaihsdnnintinicinipesdgincniainsamibiaecen 13 Webster’s Third New International Dictionary SEIT inhsseishicheisonlieteehheiitisdehesdeliiciiceidloen auth niabbsbibaia sesbitiaitintathaten 9 INTERESTS OF AMICI CURIAE'’ Amici are professors of law who teach and write in the fields of environmental and administrative law. Amici have substantial expertise relevant to the questions of interpretation of the Clean Air Act law presented in this case, and strong professional interests in the development of legal rules that promote fidelity to the public policies established in the Clean Air Act. John E. Bonine is a professor of law at the University of Oregon.” He is the former Associate General Counsel for Air, Noise, and Solid Waste at the United States Environ- mental Protection Agency, in which capacity he provided legal advice on all aspects of the Clean Air Act. His book (with Professor Thomas O. McGarity), The Law of Envi- ronmental Protection (2d ed. 1992), analyzed both the PSD program and other significant Clean Air Act pro- grams. Professor Bonine has taught pollution law for 28 years. Oliver A. Houck is a professor of law at Tulane Uni- versity Law School, where he directs the environmental law program. He served as an Assistant United States Attorney and as General Counsel to the National Wildlife Federation before joining the Tulane faculty in 1981. He ' The parties have consented to the filing of this brief. Letters of consent to the filing of this brief are being filed in conjunction with this brief. Pursuant to this Court’s Rule 37.6, counsel states that this brief was not authored in whole or in part by counsel for a party and that no one other than amici and their counsel made a monetary contribution to the preparation or submission of this brief. * Law school affiliations are included here for identification only and should not be construed as endorsement by the institutions of any positions asserted in this brief. has published widely on environmental, administrative, and constitutional law. Richard J. Lazarus is a professor of law at George- town University Law Center, where he teaches environ- mental law, natural resources law, and torts. He previously worked for the U.S. Justice Department, in both the Environmental and Natural Resources Division and the Solicitor General’s Office. He is the author of The Making of Environmental Law (2004) and co-editor of Environmental Stories (2005), as well as dozens of law review articles in the area of environmental and natural resources law. Edward Lloyd is the Evan M. Frankel Clinical Profes- sor in Environmental Law at Columbia University School of Law. He has practiced in environmental law for more than thirty years. Prior to joining the faculty at Columbia, Professor Lloyd served as the founding director of the Rutgers University Law School Environmental Law Clinic from 1985 to 2000. Thomas O. McGarity holds the W. James Kronzer Chair in Trial and Appellate Advocacy at the University of Texas School of Law, where he has taught environmental law, administrative law, and torts since 1980. He is the author of Reinventing Rationality: The Role of Regulatory Analysis in the Federal Bureaucracy (1991), and, with Professor Bonine, The Law of Environmental Protection (1991). Robert V. Percival is the Robert F. Stanton Professor of Law and Director of the Environmental Law Program at the University of Maryland School of Law. He has written extensively on environmental law and regulatory policy and is the principal author of the environmental law 3 casebook Environmental Regulation: Law, Science & Policy, the fifth edition of which was published this year. Zygmunt J. B. Plater is a professor of law at Boston College Law School, where he teaches environmental! law, property, and land use. Professor Plater is lead author of the casebook Environmental Law and Policy: Nature, Law, and Society, now in its third edition, as well as numerous articles in the field of environmental law. Arnold W. Reitze, Jr., is the J.B. and Maurice C. Shapiro Professor of Environmental Law and director of the environmental law program at the George Washington University Law School, where he has taught since 1970. Professor Reitze is the author of six books and more than fifty research studies and articles on environmental law. His most recent books are Air Pollution Control Law: Compliance and Enforcement (2001), and Stationary Source Air Pollution Law (2005). William H. Rodgers, Jr., is the Stimson Bullitt Profes- sor of Environmental Law at the University of Washing- ton. He published the Handbook of Environmental Law, in 1977, with a second edition in 1994; a case book, Energy and Natural Resources Law, in 1983; a four-volume treatise on environmental law in 1986, 1988 and 1992; and scores of essays and article on environmental law. Peter M. Shane is the Joseph S. Platt/Porter Wright Morris & Arthur Professor of Law at the Ohio State University, Moritz College of Law, as well as the Director of Center for Interdisciplinary Law and Policy Studies at Moritz College of Law. He has taught constitutional and administrative law since 1981, and he is co-author of the casebook Administrative Law: The American Public Law 4 System, now in its fifth edition, as well as numerous articles on administrative law. Mark Squillace is a professor of law and the Director of the Natural Resources Law Center at the University of Colorado School of Law. He is a co-author of Natural Resources Law and Policy (2004) and numerous articles in the area of environmental law. In addition to teaching and writing in the areas of environmental law and natural resources law, Professor Squillace also served as Special Assistant to the Solicitor of the Department of the Interior. ¢ STATEMENT This case addresses the validity of the regulatory test adopted by the Environmental Protection Agency (“EPA”) under the Clean Air Act for determining whether a change to a stationary source of air pollution constitutes a “modi- fication” as that term is used in the Prevention of Signifi- cant Deterioration program (“PSD”), 42 U.S.C. §§ 7470- 7492. The PSD program specifies standards for the “con- struction” of major pollution sources operating in attain- ment areas, that is, areas that comply with the Clean Air Act’s national ambient air quality standards. 42 U.S.C. § 7475(a). The Act defines “construction” for the PSD program to include “modification” of existing sources, and defines “modification,” in turn, by cross-reference to 42 U.S.C. § 7411. That provision, part of the New Source Performance Standards (“NSPS”) program, defines “modi- fication” as “any physical change in a stationary source which increases the amount of any air pollutant emitted by such source.” 42 U.S.C. §7411l(a\(4). EPA promulgated regulations implementing the PSD program by establishing 5 an actual annual emissions test for measuring whether a change “increases” the amount of air pollution emitted and thereby constitutes a “modification.” The test compares “actual emissions” from a source, measured in “tons per year,” with past actual annual emissions. See 40 C.F.R. § 51.166(b)(2), (3), (21) (1987). In this enforcement action, the Fourth Circuit refused to give effect to the actual annual emissions test on the ground that EPA has adopted a different test for measuring emissions increases under the NSPS program. The NSPS test measures emissions “increases” on the basis of hourly emission rates, expressed in kilograms of pollutants that a source is capable of emitting per hour, rather than total actual annual emissions. 40 C.FR. § 60.14 (1988). The Fourth Circuit ruled that the text of the Clean Air Act establishes an “effectively irrebut- table” presumption that EPA must establish identical regula- tory tests for measuring emissions increases under both the PSD and NSPS programs: “When Congress mandates that two provisions of a single statutory scheme define a term identically, the agency charged with administering the statu- tory scheme cannot interpret these identical definitions differently.” United States v. Duke Energy Corp., 411 F.3d 539, 546-547 (4th Cir. 2005). Concluding that EPA must employ the same test for measuring emissions increases under both programs, the Fourth Circuit refused to apply the actua: annual emissions test adopted under the PSD program because the NSPS test had been adopted first: “No one disputes that prior to enact- ment of the PSD statute, the EPA promulgated NSPS regula- tions that define the term ‘modification’ so that only a project that increases a plant’s hourly rate of emissions constitutes a ‘modification.’ The EPA must, therefore, interpret its PSD 6 regulations defining ‘modification’ congruently.” Jd. (em- phasis supplied by the court). ¢ SUMMARY OF ARGUMENT The court of appeals erred in effectively invalidating the actual annual emissions test. That test is fully sup- ported, if not mandated, by the text of the “modification” definition. The actual annual emissions test measures whether there has been an “increase” in the “amount” of air pollutants “emitted,” as the quoted words are used in 42 U.S.C. § 7411(a)(4), by comparing the total amount of pollutio . emitted per year to annual amounts emitted in past years. EPA reasonably concluded that pollution emissions can be said to increase if more pollution is emitted this year than in past years. In ruling otherwise, the court of appeals did not follow basic principles of statutory construction. Although the court found that the text of the Clean Air Act does not allow the actual annual emissions test, the court did not examine the statutory text, history, or purposes of the Clean Air Act and the PSD provisions, and the court did not hold that the actual annual emissions test is in any way inconsistent with the Clean Air Act. The court like- wise did not conclude that the “modification” definition unambiguously requires that “increases” be measured by the hourly rate test adopted under the NSPS program, making the actual annual emissions test in EPA’s PSD regulations an impermissible agency interpretation under the framework of Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984). Nor is it possible that the court could have reached such conclusions. Rather than undertaking any analysis that properly could be characterized as statutory construction, the Fourth Circuit invalidated the actual annual emissions test solely on the ground that EPA had adopted a different emissions test under the NSPS program. This Court's cases do not support that conclusion. This Court has stated that a presumption of consistent meanings arises when a term appears in more than one statutory provi- sion, but this Court has long recognized that the presump- tion “is not rigid” and “readily yields” when application of ordinary principles of statutory construction reveals that the term should be construed differently in different statutory provisions. Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932). The court of appeals mistakenly concluded that the presumption of consistency becomes “effectively irrebut- table” when a repeated term is defined in a single provi- sion, but this Court has already unanimously rejected that argument. In Robinson v. Shell Oil Co., 519 U.S. 337 (1997), this Court ruled that Congress’s use of a single statutory definition for the term “employee” in Title VII does not mean that the term must be given an identical construction in every provision in which it appears. Even though Title VII includes a definition of “employee” appli- cable throughout the statute, this Court held that the term means past and present employees in some provisions but only present employees in other provisions. This Court's decision in Rowan Cos. v. United States, 452 U.S. 247 (1981), upon which the Fourth Circuit relied in finding the presumption of consistency “effectively irrebuttable,” does not support such a beefed-up presumption. Rowan holds that the term “wages” should be given a consistent mean- ing in different provisions of the tax code based on the 8 text, purposes, and legislative history of the provisions at issue. Rowan does not hold that the presence of a common statutory definition invariably mandates consistency. Even if the Fourth Circuit were correct that EPA must employ identical tests for determining if there has been an emissions “increase” under both the NSPS and PSD pro- grams, that conclusion would not mean that the actual annual emissions test is invalid. That EPA adopted differ- ent tests under the two programs does not suggest which test is right or wrong. The Fourth Circuit gave no reason for preferring the hourly rate test over the actual annual emissions test other than the fact that the hourly rate test was adopted first. If consistency is required, however, there is no reason to prefer an earlier test to a later test. Instead, the validity of either test should be determined using the ordinary methods of statutory construction, examining the statutory text, context, purposes, and history of the Clean Air Act, and giving proper deference to EPA for its resolu- tion of any statutory ambiguities. Under that analysis, the actual annual emissions test is plainly valid. ; e ARGUMENT I. THE PLAIN MEANING OF THE “MODIFICA- TION” DEFINITION AND THE UNMISTAK- ABLE PURPOSE OF THE PSD PROGRAM REQUIRE AN ACTUAL ANNUAL EMISSIONS TEST In reviewing the court of appeals’ refusal to give effect to EPA regulations, it is important to note what the court did not do: it did not undertake to construe the definition of “modification” as it appears in 42 U.S.C. § 7411(a)(4), --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0237%3A28. Public record. Not legal advice.