Amicus Curiae Brief — Environmental Defense v. Duke Energy Corporation

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and it did not conclude that the actual annual emissions

test adopted by EPA for the PSD program is inconsistent

with that text, or with the structure, purposes, or history

of the Clean Air Act.

Had the court bothered to consider the text of the

“modification” definition, it could only have reached the

conclusion that the actual annual emission test is not only

a permissible construction of that text but is in fact re-

quired by it. Section 7411(a)(4) defines “modification” of

stationary sources subject to the PSD program as “any

physical change in *** a stationary source which in-

creases the amount of any air pollutant emitted by such

source.” The ordinary meaning of the operative words—

“amount,” “emitted,” and “increases”—comport with the

actual annual emission test. Under the actual annual

emissions test, the “amount” of air pollutants “emitted” is

said to “increase” when a stationary source “emitted” more

tons of pollutants this year than it did in past years. That

test perfectly tracks the everyday meanings of the statu-

tory terms, as the “amount” of pollution “emitted” surely

“increases” when more tons of pollution are released now

than in the past. It would be difficult to find a more

obvious example of the plain meaning of common words.’

The alternative test, the hourly rate test, which

measures the maximum amount of pollution a source can

emit per hour, does not so easily conform with the statutory

* See Webster's Third New International Dictionary 1145 (2002)

(defining “increase” as “to become greater in some respect (as in size,

quantity, number, degree, value, intensity, power, authority, reputa-

tion, wealth): GROW, ADVANCE, WAX”); id. at 72 (defining “amount”

as “the total number or quantity: AGGREGATE”); id. at 742 (defining

“emit” as “to send out: DISCHARGE, RELEASE”).

language. Nothing in the text of the “modification” defini-

tion suggests any concern for maximum emission rates

unconnected to actual pollution emitted. The definition

makes clear that Congress was concerned about the

“amount” of pollution “emitted,” which does not necessar-

ily depend on a source’s capacity for emissions. On the one

hand, a change to a source may increase its capacity for

emissions without increasing the amount of pollution

emitted if the source operates below its capacity. On the

other hand, a change that allows a source to operate for

more hours may increase the amount of pollution actually

emitted even though its hourly emissions capacity stays

the same or even decreases. Accordingly, a test that

focuses on hourly emission rates does not capture Con-

gress’s intent to focus on changes that “increase” the

“amount” pollutants actually “emitted.”

Although the Fourth Circuit did not undertake any

analysis of the language of the “modification” definition,

the D.C. Circuit thoroughly examined the statutory text

and held that the actual annual emissions test is required

by the plain language of the modification definition, ruling

that “the Clean Air Act unambiguously defines ‘increases’

in terms of actual emissions.” New York v. EPA, 413 F.3d 3,

39 (D.C. Cir. 2005). The court found that the phrase “the

amount of any air pollutant emitted” in the “modification”

definition “plainly refers to actual emissions.” Jd. at 40. The

* The hourly rate test would not square with the statutory lan-

guage even if it focused on the hourly rate of pollutants that a source

actually emits, rather than its hourly emissions capacity. The “amount”

of pollutants “emitted” from a source can “increase” if a source makes a

change that allows it to operate more hours without increasing the

hourly rate of emissions, but such a change would not be captured by

any version of an hourly rate test.

court noted that other Clean Air Act provisions distinguish

between actual, potential, and allowable emissions: “If

Congress had intended for ‘increases’ in emissions to be

measured in terms of potential or allowable emissions, it

would have added a reference to ‘potential to emit’ or

‘emission limitations.’ The absence of such a reference

must be given effect.” Jd. Accordingly, the court found that

the “plain language” of the modification definition man-

dates that EPA examine “actual emissions instead of

potential or allowable emissions.” Jd. Unlike the Fourth

Circuit, the D.C. Circuit has authority to determine the

validity of EPA regulations, a fact that provides an inde-

pendent basis for reversal. See 42 U.S.C. § 7607(b).

To the extent that the validity of the actual annual

emissions test is not fully resolved by the plain language

of the “modification” definition alone, other provisions of

the PSD program make it clear that the “modification”

definition refers to actual emissions. The program applies

to “major emitting sources,” expressly defined in terms of

their total annual emissions. See 42 U.S.C. § 7479(1). It

would be incongruous to define a “modification” of these

major sources in terms of anything but increases in annual

emissions. The compliance provisions likewise speak in

terms of limits on actual emissions, see, e.g., 42 U.S.C.

§ 7475(a)(1), (3), making it exceedingly unlikely that

Congress could have intended a threshold test to allow

actual emissions increases to go unregulated.

Moreover, the purpose of the PSD program supports

the actual annual emissions test but not the hourly rate

test. The PSD program seeks to prevent increases in the

emission of pollutants in attainment areas, that is, areas

in compliance with ambient air quality standards. See 42

U.S.C. § 7470; Ala. Power v. Costle, 636 F.2d 323, 346-351

(D.C. Cir 1979). It does so, as the Fourth Circuit correctly

stated, by “fix[ing] on the actual emissions from a site.”

411 F.3d at 543; see also Alaska Dept. of Environmental

Conservation v. EPA, 540 U.S. 461, 470-471 (2004). Con-

gress declared that the PSD program is intended “to

assure that any decision to permit increased air pollution

in [attainment areas] is made only after careful evaluation

of all the consequences of such a decision and after ade-

quate procedural opportunities for informed public par-

ticipation.” 42 U.S.C. §7470(5). Congress’s goal of

preventing increased pollution emissions without “careful

evaluation” and “public participation” would be thwarted

by the hourly rate test because it allows increased emis-

sions without any agency evaluation or public participa-

tion.”

* Moreover, if the court of appeals were correct that consistency

requires that the hourly rate test be applied in identifying “modifica-

tions” in attainment areas under the PSD program, that would

presumably mean that the same test must also be applied to “modifica-

tions” in non-attainment areas under the Non-Attainment New Source

Review (“NNSR”) program. As under the PSD provisions, the definition

of “modification” for NNSR is incorporated by reference to the NSPS

provision. See 42 U.S.C. § 7501(4). Application of the hourly rate test

under NNSR would have disastrous consequences for air quality. The

purpose of the NNSR program is to decrease the total amount of

pollution emissions in non-attainment areas so that the national

ambient air quality standards can be achieved, but that purpose would

be thwarted if regulatory authorities must focus on hourly emission

rates rather than actual annual emissions. Indeed, if EPA were stuck

with the hourly rate test under the NNSR program, air pollution in

non-attainment areas could get much worse and EPA could do little

about it.

Il. THE PRESUMPTION OF CONSISTENCY DOES

NOT SUPPORT THE INVALIDATION OF THE

ACTUAL ANNUAL EMISSIONS TEST

In refusing to apply the actual annual emissions test,

the Fourth Circuit relied principally, if not entirely, on the

presumption of consistency—the principle that a word

appearing in different statutory provisions should be given

a consistent meaning. This Court long ago warned, how-

ever, that “only mischief can result” i . term appearing in

two statutory provisions must be “given one meaning

regardless of the statutory context.” Lee v. Madigan, 358

U.S. 228, 231 (1959). The Fourth Circuit’s decision in this

case reveals exactly the sort of mischief this Court meant.

There is no basis in principles of statutory construction or

in this Court’s cases for concluding that EPA must employ

the same test for emissions increases under the PSD and

NSPS programs. Moreover, even if EPA must employ

identical tests for both programs, that conclusion would in

no way mean that the actual annual emissions test is

invalid.

A. This Court Has Unanimously Rejected the

Argument that a Term Must Be Construed

Identically Whenever It Is Defined in a

Single Statutory Provision

This Court has long recognized a presumption that a

term be given a consistent meaning when it appears in

different provisions of the same statute. See, e.g., Atlantic

Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433

(1932) (“[T]here is a natural presumption that identical

words used in different parts of the same act are intended

to have the same meaning.”); 2A Norman J. Singer, Stat-

utes and Statutory Construction 357 (6th ed. 2000). The

presumption of consistency arises from the principle that

“a phrase gathers meaning from the words around it.”

General Dynamics Land Systems v. Cline, 540 U.S. 585,

591 (2004). Thus, a “provision that may seem ambiguous

in isolation is often clarified by the remainder of the

statutory scheme—because the same terminology is used

elsewhere in a context that makes its meaning clear.”

United Sav. Assn. of Tex. v. Timbers of Inwood Forest

Associates, Ltd., 484 U.S. 365, 371 (1988).

The Fourth Circuit applied the presumption, however,

in a manner at odds with this Court’s cases and oft-

repeated instructions. The Fourth Circuit held that the

presumption rigidly requires identical regulatory tests in

different programs that make use of the same statutory

term whenever Congress has given the term a single

statutory definition. As this Court has long recognized,

however, the presumption of consistency “is not rigid” and

“readily yields” when statutory context reveals that a term

should be construed differently in different statutory

provisions. Atlantic Cleaners & Dyers, Inc. v. United

States, 286 U.S. 427, 433 (1932). This Court’s cases are

replete with instances in which the presumption of consis-

tency was rejected. In a passage that this Court has

* See, e.g., Wachovia Bank v. Schmidt, __ U.S. __, 126 S.Ct. 941

(2006) (holding that the word “located” as its appearances in the

banking laws “is a chameleon word; its meaning depends on the context

in and purpose for which it is used”); General Dynamics Land Systems,

Inc. v. Cline, 540 U.S. 581 (2004) (holding that the word “age” has

different meanings in different provisions of the Age Discrimination in

Employment Act); United States v. Cleveland Indians Baseball Co., 532

U.S. 200 (2001) (construing the phrase “wages paid” to have different

meanings in different parts of the tax code); Atlantic Cleaners & Dyers,

Inc. (holding that the word “trade” has a more encompassing meaning

in Section 3 than in Section 1 of the Sherman Act).

declared that “[t}he tendency to assume that a word which

appears in two or more legal rules, and so in connection

with more than one purpose, has and should have pre-

cisely the same scope in all of them, runs all] through legal

discussions. It has all the tenacity of original sin and must

constantly be guarded against.” Cline, 540 U.S. at 585 n.8

(quoting Cook, “Substance” and “Procedure” in the Conflict

of Laws, 42 Yale L.J. 333, 337 (1933)).

Notwithstanding this Court’s repeated instruction

that the presumption of consistency must “readily yield”

when statutory context supports a different result, the

Fourth Circuit asserted that the presumption of consis-

tency is “effectively irrebuttable” under the Clean Air Act

because Congress defined the term “modification” for both

PSD and NSPS in a single provision. As the Fourth Circuit

stated: “Congress’ decision to create identical statutory

definitions of the term ‘modification’ has affirmatively

mandated that this term be interpreted identically in the

two programs.” 411 F.3d at 550.

In Robinson v. Shell Oil Co., 519 U.S. 337 (1997), a

case also arising from the Fourth Circuit, this Court

unanimously rejected an argument identical to the one

adopted by the court of appeals here, and ruled that

Congress’s use of a single statutory definition of a term

does not mean that the term must be given an identical

construction in every instance. Robinson addresses

whether the term “employee” could include past and

present employees in some provisions in Title VII but only

present employees in other provisions. The Fourth Circuit

had held that the term must be given identical meanings

throughout the statute because Congress had given the

word a single statutory definition. See Robinson v. Shell

Oil Co., 70 F.3d 325, 328-331 (4th Cir. 1995). As the court

of appeals stated, “employee” could only mean one thing

throughout Title VII because “Title VII defines ‘employee’

for purposes of all provisions of Title VII.” Jd. at 329-330.

This Court unanimously reversed, holding that the statu-

tory definition of “employee” did not resolve the question

because the definition “is consistent with either current or

past employment.” Robinson, 519 U.S. at 542. Finding

that the term “employee” is ambiguous as to whether it is

limited to current employees, this Court held that the

ambiguity could be resolved differently in the different

statutory provisions in which the term appears.

Robinson dictates reversal. Robinson demonstrates

that a statutory term can be given different meanings as

used in different provisions notwithstanding the fact that

Congress gave the term a single statutory definition. Just

as the term “employee” appears in various provisions in

Title VII and is defined in a single statutory provision, so

the term “modification” appears in both the NSPS and

PSD provisions and is defined in a single statutory provi-

sion. Just as the definition of “employee” in Title VII does

not resolve whether it covers both past and present em-

ployees, the definition of “modification” in the Clean Air

Act does not resolve complex questions of how “increases”

in air pollution emissions should be measured.’ Thus,

" Under the Fourth Circuit’s conclusion that identical regulatory

tests for “modification” are required, it would appear that EPA could

not, for reasons of technological feasibility or administrative conven-

ience, choose to measure emissions increases by volume in one program

and by weight in the other. The presumption of consistency, however,

addresses only whether a term should be construed to have a consistent

interpretation across statutory provisions and does not speak to the

particulars of the regulatory tests by which an agency’s interpretation

is put into action.

while the Fourth Circuit held that Congress’s decision to

employ a single definition of “modification” applicable to

both the NSPS and PSD program requires that the term

be “interpreted identically,” 411 F.3d at 550, Robinson

holds that Congress’s use of a single definition of “em-

ployee” does not require that the term be interpreted

identically in every provision.

One difference between Title VII and the Clean Air

Act bears special emphasis. Title VII does not delegate

regulatory and thus interpretive authority to an adminis-

trative agency, but the Clean Air Act unquestionably gives

EPA authority to promulgate regulations establishing

exactly how emissions “increases” should be measured. As

the D.C. Circuit correctly ruled, judicial review of the

validity of EPA regulations like those embodying the

actual emissions test must “apply a highly deferential

standard of review,” under which the regulations can be

set aside only if it “exceeds EPA’s statutory jurisdiction,

authority, or limitations or is arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with

law.” New York v. EPA, 413 F.3d at 17 (quoting 42 U.S.C.

§ 7607(d)\(9)). For the reasons discussed in Part I, supra,

EPA’s decision to employ an actual annual emissions test

for the PSD program is eminently reasonable and is

entitled to deference.

B. Rowan Does Not Support the Fourth Cir-

cuit’s Decision

The Fourth Circuit placed particular reliance on this

Court’s decision in Rowan Cos. v. United States, 452 U.S.

247 (1981), which it characterized as addressing “a situa-

tion strikingly similar to the one at hand,” 411 F.3d at 547.

Rowan, however, supports neither the “effectively irrebut-

table” presumption of consistency adopted by the court of

appeals nor the court’s rejection of the actual annual

emission test.

Rowan addresses the validity of Treasury Department

regulations construing the meaning of the word “wages” as

it appears in the Federal Insurance Contributions Act

(FICA), the Federal Unemployment Tax Act (FUTA), and

the income tax withholding provisions of the tax code. The

Treasury Department had adopted regulations requiring

employers to include employer-provided meals and lodging

in computing “wages” under FICA and FUTA but not in

calculating “wages” for income tax withholding purposes.

This Court held that the various tax code provisions were

best construed to employ a single meaning of “wages.” In

holding that a consistent meaning of “wages” is required

by the tax code, Rowan does not employ anything like the

principle adopted by the Fourth Circuit—that the use of a

single statutory definition establishes an “effectively

irrebuttable” presumption that an agency must employ

identical regulatory tests.

Instead, employing ordinary principles of statutory

construction, Rowan holds that Congress intended the

Treasury Department to employ a consistent interpreta-

tion of “wages.” This Court carefully examined the text,

purposes, legislative history, and regulatory history of the

provisions at issue, and concluded that, read together,

these sources demonstrate a congressional intent that the

Treasury Department construe the term “wages” consis-

tently. The Court supported its conclusion with the texts of

the three statutes, which define “wages” in “substantially

the same language.” 452 U.S. at 255. The fact that Con-

gress employed nearly identical definitions of wages in the

different statutes was not the end of this Court’s analysis

but rather only the beginning, as the similarity provided

“strong evidence that Congress intended ‘wages’ to mean

the same thing” in each statute. Jd. Other sources relied

upon in Rowan supported the conclusion that consistent

meanings were intended. This Court thus relied on the

legislative history and purposes of the tax code provisions

at issue, finding that these sources “reveal a congressional

concern for ‘the interest of simplicity and ease of admini-

stration.’” 452 U.S. at 255 (quoting S.Rep. No. 1631, 77th

Cong., 2d Sess., 165 (1942)). Congress’s interest in simplic-

ity and ease of administration would be jeopardized, this

Court reasoned, if employers were required to calculate

wages differently in different tax programs. /d. at 257."

* Rowan suggests that the Treasury Department was entitled to

diminished deference for regulations interpreting the term “wages”

because those regulations amounted to interpretive regulations adopted

pursuant to a general grant of rulemaking authority. See Rowan, 452

U.S. at 251 (“[W]Je owe the interpretation less deference than a regula-

tion issued under a specific grant of authority to define a statutory term

or prescribe a method of executing a statutory provision.”). That aspect

of Rowan may no longer be good law. As Justice Scalia has explained,

the era in which this Court distinguished the degree of deference owed

to agency statutory constructions based on whether the construction is

embodied in “interpretive” rather than “legislative” regulations or

whether the agency’s rulemaking authority is general or specific “came

to an end with our watershed decision in Chevron, which established

the principle that ‘a court may not substitute its own construction of a

statutory provision for a reasonable interpretation made by the

administrator of an agency.’” Christensen v. Harris County, 529 US.

576, 589 (2000) (Scalia, J., concurring) (quoting Chevron, 467 U.S. at

844). If the term “modification” is ambiguous (and the D.C. Circuit

concluded that it unambiguously refers to actual emissions), EPA is

entitled to the full measure of deference under Chevron for its construc-

tion of the term and, correspondingly, it has authority to determine

whether differences between the NSPS and PSD programs require

different tests for measuring modifications.

Rowan does not lend any support to the creation of an

“effectively .crebuttable” presumption of consistency

whenever Congress enacts a single definition of a term

appearing throughout a statute. On the contrary, Rowan is

an unremarkable application of the presumption of consis-

tency. In Rowan, this Court found that the text, purposes,

and legislative history of the tax provisions established no

basis for departing from consistency and, in fact, affirma-

tively demonstrated a congressional! intent that the term

be construed consistently.

The considerations supporting this Court’s conclusion

in Rowan are absent here. There is no basis in the statu-

tory text, legislative history, or purposes of the PSD and

NSPS programs to conclude that Congress intended the

two programs to be governed by identical regulatory tests

without regard to any differences in the programs. There

is no reason to conclude that, in incorporating the NSPS

definition of modification in the PSD program, Congress

was concerned about simplicity and ease of administration

as it was in enacting the provisions of the tax code at issue

in Rowan. Of course, simplicity and ease of administration

are salutary in any program, but in Rowan this Court

identified a specific reason for finding a congressional

intent that the tax code provisions be easily understood:

the provisions were intended to be applied by practically

every employer in the United States and therefore con-

cerns for simplicity and ease of administration were

paramount. The Clean Air Act’s PSD program, in contrast,

only applies to major sources of air pollution, which are

quite capable of adjusting to different tests in different

circumstances. Cf. Chevron, 467 U.S. at 848 (characteriz-

ing the Clean Air Act as “lengthy, detailed, technical,

complex, and comprehensive’).

As the Fourth Circuit and other courts have recog-

nized, there are fundamental differences between the PSD

and NSPS programs. Thus, if the plain meaning of the

modification definition does not require the actual annual

emission test for both programs, differences between the

PSD and NSPS programs could support different emis-

sions tests. The NSPS program focuses on uniform tech-

nology-based performance standards, which apply to all

new and modified sources in particular source categories

regardless of where they are located. See 42 U.S.C. § 7411.

The PSD program, in contrast, as the Fourth Circuit

recognized, “fixes on the actual emissions from a site.” 411

F.3d at 543; see also N. Plains Res. Council v. EPA, 645

F.2d 1349, 1356 (9th Cir. 1981) (“The NSPS program is

*** equipment oriented. On the other hand, the PSD

program [is] site oriented.”).

C. The Actual Annual Emissions Test Would Be

Valid Even if EPA Were Required to Employ

the Same Test for the NSPS and PSD Pro-

grams

Having mistakenly ruled that EPA is required to

employ the same test for measuring emissions increases

under both the PSD and NSPS programs, the Fourth

Circuit compounded its mistake by ruling that inconsis-

tency alone provides a ground for invalidating the actual

annual emissions test. Even if the Fourth Circuit were

correct that EPA must adopt identical emissions tests

under the two programs, it would not mean that the actual

annual emissions test is invalid. Consistency could be

established in any of three ways: the actual annual emis-

sions test could be required for both the PSD and NSPS

programs, the hourly rate test could be required for both

programs, or some other test could be required for both

programs. The conclusion that identical tests must be

adopted for both the NSPS and PSD programs, even if it

were correct, says nothing about what test is valid.

The presumption of consistency can require invalida-

tion of a statutory interpretation only in circumstances not

present here: when it is clear how a statutory term should

be construed in one provision and an inconsistent con-

struction of the term has been given to the term appearing

in another provision. For instance, in Cohen v. de la Cruz,

523 U.S. 213 (1998), this Court examined the meaning of

the phrase “debt for” as it appeared in Section 532(a)(2)(A)

of the bankruptcy code. In Cohen, the Court first found

that the term was used for identical purposes in various

bankruptcy provisions, and the Court therefore concluded

that the term should be given the same meaning in each

provision. Jd. at 220. Next, the Court found that the term

had a clear meaning as it was used in one provision,

Section 532(a)(9). Jd. Finally, the Court reasoned that the

clear meaning of the term as it appeared in Section

532(a\(9) should be imported into the provision at issue.

Id. (“It is clear that ‘debt for’ in [Section 532(a)(9)] means

‘debt arising from’ or ‘debt on account of,’ and it follows

that ‘debt for’ has the same meaning in § 523(a)(2)(A).”). To

put this reasoning in generic terms, a court can invalidate

an agency's statutory construction for violating the pre-

sumption of consistency if it finds that a term appearing in

Provisions 1 and 2 must be construed consistently, finds

that the term appearing in Provision 1 clearly has mean-

ing X, and then finds that the term appearing in Provision

2 should also be given meaning X. But where there is no

authoritative basis for determining what the term means

in either Provision 1 or 2, inconsistent constructions

establish no basis for invalidating the agency’s construc-

tion.

The Fourth Circuit did not adhere to this reasoning. It

did not hold that Congress mandated an hourly rate test

for either the NSPS or PSD program. The only reason it

gave for preferring one test to the other is that the hourly

rate test was adopted first: “No one disputes that prior to

enactment of the PSD statute, the EPA promulgated NSPS

regulations 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 regulations defining ‘modification’

congruently.” 411 F.3d at 550. As the D.C. Circuit held,

however, there is no basis for finding that Congress

intended to incorporate the regulatory hourly rate test in

enacting the PSD provisions. See New York v. EPA, 413

F.3d at 19-20. Indeed, the Fourth Circuit appears to have

recognized that the hourly rate test is not mandated by

the text of the statute, as the court recognized EPA’s

authority to adopt a different test. 411 F.3d at 550. (“Of

course, this does not mean that this regulatory interpreta-

tion must be retained indefinitely. The EPA retains its

authority to amend and revise this and other regula-

tions.”). Thus, the only basis the court of appeals gave for

finding that the PSD program must apply the hourly rate

test rather than the actual annual emissions test is that

the hourly rate test came first in time. That conclusion is

unsupported by law or logic, and the court provided none.

CONCLUSION

For the foregoing reasons, as well those in the briefs

filed by petitioners and their amici, the judgment of the

United States Court of Appeals for the Fourth Circuit

should be reversed.

Respectfully submitted,

JARED A. GOLDSTEIN

ROGER WILLIAMS UNIVERSITY

SCHOOL OF LAW

Ten Metacom Ave.

Bristol, Rhode Island 02908

(401) 254-4594

Counsel for Amici Curiae

‘4 FILED

No. 05-848 JUL 2 1 2006

| ICE OF THE CLERK

In The UPREME COURT, U.S.

Supreme Court of the Gnited 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 FORMER EPA ADMINISTRATORS

CAROL M. BROWNER AND RUSSELL E. TRAIN

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

HOLLy D. GORDON*

DEBORAH A. SIVAS

STANFORD LAW SCHOOL

ENVIRONMENTAL LAW CLINIC

Crown Quadrangle

559 Nathan Abbott Way

Stanford, California 94305-8610

Telephone: (650) 725-8571

Facsimile: (650) 723-4426

*Counsel of Record

Counsel for Amici Curiae

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

————___OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE....................ccssessesseseees 1

SUMMARY OF THE ARGUMENT ...................eeeeeeees 2

IIT iseiiesduinvicsietuindsinddennsiiclbdaiisobiiiihaiamsedpedseipaeieninliaieiihden 3

I. SECTION 307 OF THE CLEAN AIR ACT

II.

REQUIRES JUDICIAL REVIEW OF NATION-

ALLY APPLICABLE REGULATIONS TO OC-

CUR SOLELY IN THE DISTRICT OF

COLUMBIA CIRCUIT COURT ........0.0...c cee

A. Rather than Applying the Regulations to

the Facts to Determine if Enforcement Was

Warranted, the Fourth Circuit Improperly

Invalidated the 1980 PSD Regulations.........

B. Uniform Judicial Review of Nationally Ap-

plicable Regulations Is Critical to EPA's

Ability to Properly Carry Out the Directives

I sii saisiidscciinnndincmeceeniniaions

EVEN IF THE FOURTH CIRCUIT HAD JURIS-

DICTION, ITS REGULATORY INTERPRETA-

TION DISREGARDS THE PLAIN LANGUAGE

OF THE PSD REGULATIONS AND VIOLATES

ET iiiieeahitbicesnenicneilinnsisialioeuiedguilasdinainniamebtiuciiebinn

A. Industry’s Hourly Test Is Contrary to the

Plain Language of EPA’s PSD Regulations...

B. The EPA Regulations and Related Case Law

Regarding PSD Confirm that Duke Was Re-

quired to Consider Increased Emissions

Caused by Increased Hours of Operation

When Evaluating Whether PSD Require-

ments Applied to its Plant Renovations........

TABLE OF CONTENTS — Continued

Page

C. An Hourly Emissions Rate Test for PSD

Would Undermine the Purposes of the Act’s

elie 21

D. Industry, Including Duke, Was Well Aware

that the Test for PSD Was Annual Emis-

sions, Not Hourly Emissions......................... 24

END <seininsncnnsinsinitainieniniinigsediaiamusacaiecdbepvdnidnusnad . 27

ill

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Adamo Wrecking v. United States, 434 U.S. 275

Pe concshsshidnivicssendanieedieliniaicebtieeddnitiaialentsippdndsuesieaingipdiadidiaia 7,9, 11

Alabama Power Co. v. Costle, 636 F.2d 323 (D.C.

at 11, 20

Lubrizol Corp. v. Train, 547 F.2d 310 (6th Cir. 1976)... 4, 11

New York v. Environmental Protection Agency, 413

I el 5, 8, 9, 10

Northern Plains Resource Council v. EPA, 645 F.2d

2 SEEN ee ee i cee Re 5, 21

Puerto Rican Cement Co. v. Environmental Protec-

tion Agency, 889 F.2d 292 (1st Cir. 1989)........... 7, 18,19

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

I a 13, 16

United States v. Duke Energy, 411 F.3d 539 (4th

a 6, 7, 16

United States v. Ethyl Corp.; 761 F.2d 1153 (5th

A TERR ASE TREE EE Se POL aD g

United States v. Ho, 311 F.3d 589 (5th Cir. 2002).............. 7

United States v. Ohio Edison Co., 276 F. Supp. 2d

I 6,19

United States v. Southern Indiana Gas and Electric

Co., 245 F. Supp. 2d 994 (S.D. Ind. 2003)................. 6, 20

Whitman v. American Trucking Ass'ns, 531 U.S.

RAR RSE 2 97 A CESARE Sit AIC OS OCR ODE iE 9,11

TABLE OF AUTHORITIES - Continued

Page

Wisconsin Electric Power Company v. Reilly, 893

Pe Ne CHE EE GED iincensrnccevtacssosinticegsempininios 5, 6, 7, 18

DOCKETED CASES

Chemical Manufacturers Ass’n v. Environmental

Protection Agency, Nos. 79-1112, et all. .............0ccccccceeeeees 8

FEDERAL STATUTES

Fes Bh FN erihcceciccvmncacittniscniciinininiicidanitimiiaiiataimmeata 4

Se as SP cicercncvniiiciicccsichetintiatisiesisaitihianadimie 2, 5, 14

Ge se PIES stcidiicisiiassecctioretuatene 13

GD es 6 FSO tivicttinincenbiitineeeimnaene 13

BEB BIB iors 5, 21

Gs B Pee sicsevisiniinctttendcicanvitnadionmiemene 11

Be Bs Oe Bence ssisctisiiecesdnidiiilacmmepeinnabensiaenenn 11, 22

CD EA. B Fee ictvtsicisimisenictcscisnimmeciinaceamesieaiaal 22

Ge is 2 Pi iintintitiniomniinmenaee 22

OD es Pe iti ioiisessthsenicietadectadencectimmmmaaain 22

SD as BID saiicrstcriintvtcnicndicenapetienmabnaummiamate 11, 22

GB TENE. F FP Pee rsseniccictsinnunanninemissiunsbaniamaan 2

TABLE OF AUTHORITIES -— Continued

Page

EE 4,7

EERE Ee 4

FEDERAL RULES AND REGULATIONS

ESET SES CR 1

i cieulintennivonncs 10

a csccpmunnsmnneni 10

EE CEE 14, 16

a IED nc cccvcnsncccesonveconsecooceoooosorente 16

ae Be IFIED cncecccccecesevecccsecccenesescossoccosscoses 14

Ey Oy I IIIIED cccocccocceccccosesesosussccosecscosesecosces 15

TR a TED 15

40 C.F.R. § 51.166(b)(21)(ii)............ sieinchitiatanie 5, 15, 16

| | 15, 23

a. clnbumbenovetuboowanen 22

i coateininbantonts 14

Sn 5

43 Fed. Reg. 26,380 (June 19, 1978) .....0.0......cccccccceeceeceeees 11

45 Fed. Reg. 52,676 (Aug. 7, 1980)........0.0..0cccccc0c0e. 11, 16, 23

57 Fed. Reg. 32,314 (July 21, 1992) ........0ccccccceee. 19, 21, 22

61 Fed. Reg. 38,250 (July 23, 1996).......0000.0.0.0cccceeeee 24, 25

62 Fed. Reg. 38,856 (July 18, 1997) ..................ccccceeseeseeees 11

67 Fed. Reg. 80,186 (Dec. 31, 2002) .......0000000000..... 19, 25, 26

TABLE OF AUTHORITIES ~— Continued

Page

69 Fed. Reg. 23,951 (April 30, 2004).......00.... eee 11

70 Fed. Reg. 61,081 (Oct. 20, 2005) ................ 12, 20, 26, 27

REPORTS AND PUBLICATIONS

Air Pollution: EPA Should Improve Oversight of

Emissions Reporting at Large Facilities, Gov-

ernment Accounting Office, April 2001................... 12, 13

New Source Review Rule Change Harms EPA’s

Ability to Enforce Against Coal-fired Electric

Utilities, Office of Inspector General, Report No.

2004-P-00034, Sept. 30, 2004 .0...........ccceeceeceeeeeeeeeeeeeeeees 12

INTEREST OF AMICI CURIAE'

Amici curiae’ are a bipartisan team of former Envi-

ronmental Protection Agency (“EPA”) Administrators,

spanning over a decade of service, with an interest in the

uniform and consistent application of the Clean Air Act’s

(“Act”) New Source Review (“NSR”) program to regulated

entities across the country. This case is not just about an

enforcement action against a single regulated entity.

Sanctioning the Fourth’s Circuit’s decision to invalidate

long-standing EPA regulations would undermine Congress’

intent to have prompt judicial review of nationally appli-

cable regulations in a single court. As the agency primarily

charged with implementing the Act, EPA has worked

diligently over the last three and one half decades to

appropriately and efficiently promulgate final rules on

which EPA and the states could base state implementation

plans, permits for regulated entities, and enforcement

actions. Ad hoc review of final rules by the lower courts

would undermine EPA’s ability to carry out these impor-

tant functions that protect our Nation's air. In addition,

amict have a strong interest in ensuring that long-

standing consistent interpretations of EPA rules are

upheld by the courts.

' All parties have consented to the filing of this brief in letters that

are on file with the Clerk. Pursuant to Rule 37.6, counsel! for amici

state that no counsel for a party authored this brief in whole or in part.

The Energy Foundation made a monetary contribution to cover the

costs of printing the bnef

* Amici are Former EPA Administrator Caro! M. Browner (Jan.

1993 to Jan. 2001) and Former EPA Administrator Russell E. Train

(Sept. 1973 to Jan. 1977).

SUMMARY OF THE ARGU MENT

When the Clean Air Act was enacted in 1970, and

amended in 1977, Congress was careful to include particu-

larized judicial review provisions that streamlined and

forced prompt challenges to nationally applicable regula-

tions. See 42 U.S.C. § 7607(b). Section 307 of the Act

allows only the United States Court of Appeals for the

District of Columbia Circuit (“D.C. Circuit”) (and, on

appeal, the Supreme Court) to make decisions regarding

the validity of such regulations. Congress recognized that

if other circuit and district courts across the country were

allowed to invalidate these regulations at any point in time,

it would substantially interfere with EPA's ability to carry

out the directives of the Act. Therefore, the Fourth Circuit

can only interpret EPA’s regulations; it cannot invalidate or

effectively re-write EPA’s regulations as it did in this case.

The Fourth Circuit has overstepped its jurisdictional

bounds in this case and the decision must be reversed.

In the alternative, even if the Fourth Circuit had

jurisdiction, its alleged interpretation of the regulations is

improper as it runs counter to EPA's long-standing consis-

tent interpretation of the regulations. The Act, as

amended in 1977, requires any major source (i.e., a source

that emits above certain thresholds), to obtain a permit

prior to undertaking a “modification,” defined in the Act as

any physical or operational change that “increases the

amount of any air pollutant emitted by such source or

which results in the emission of any air pollutant not

previously emitted.” 42 U.S.C. § 7411(a\4). In this case, the

Clean Air Act programs at issue are the New Source Per-

formance Standards (“NSPS”) and Prevention of Significant

Deterioration (“PSD”). The NSPS program applies location-

neutral, general emissions rate limitations to categories of

sources, while the PSD program requires case-by-case

facility-wide emissions control technologies based on

ambient air quality at the location of the source. Due to

these fundamental differences in the programs, EPA has

consistently used different rules for imposing the require-

ments of each program on regulated entities. While EPA

interprets its NSPS rules to define “modification” as a

physical or operational change that will increase a source's

maximum hourly emissions rate, the plain language of the

PSD rules establish an actual annual emissions test. Since

1980, EPA has consistently applied an actual annual

emissions test, which includes the facility's number of

hours of operation. Industry, including Respondent Duke

Energy, was well aware of that test. The Fourth Circuit's

decision should be reversed and remanded to carry out

EPA’s enforcement action and apply the actual annual

emissions test to the facts of this case.

ARGUMENT

I. SECTION 307 OF THE CLEAN AIR ACT REQUIRES

JUDICIAL REVIEW OF NATIONALLY APPLICA-

BLE REGULATIONS TO OCCUR SOLELY IN THE

DISTRICT OF COLUMBIA CIRCUIT COURT.

Although this case began as an enforcement action

against Duke Energy for modifying its electric generating

plants without applying for required permits or installing

up-to-date pollution controls, it has turned into a platform

for industry to entice the Fourth Circuit into improperly

invalidating nationally applicable regulations that were

promulgated over 25 years ago. The job of the lower courts

was to apply EPA's regulations to the facts and to deter-

mine if Duke violated those regulations. Instead, under

the guise of interpreting the regulations, the Fourth

Circuit has, in effect, improperly invalidated EPA's long-

standing PSD regulations. Affirming the Fourth Circuit's

decision would allow regulated entities to belatedly attack

long-standing rules rather than promptly challenging

disputed rules, thereby significantly disrupting EPA’s

ability to carry out the Clean Air Act’s directive “to protect

and enhance the quality of the Nation’s air resources so as

to promote the public health and welfare.” 42 U.S.C.

§ 7401(b)(1). :

A. Rather than Applying the Regulations to

the Facts to Determine if Enforcement Was

Warranted, the Fourth Circuit Improperly

Invalidated the 1980 PSD Regulations.

Section 307 of the Clean Air Act provides that “[a]

petition for review of action of the Administrator in prom-

ulgating ... nationally applicable regulations ... may be

filed only in the United States Court of Appeals for the

District of Columbia.... Any petition for review under

this subsection shall be filed within sixty days from the

date notice of such promulgation ... appears in the Fed-

eral Register.” 42 U.S.C. § 7607(b\(1). In addition, section

307 provides that challenges to nationally applicable

regulations shall not occur in civil enforcement proceed-

ings. 42 U.S.C. § 7607(b\(2). The purpose of the section 307

judicial review provision is “to avoid needless delays in the

implementation of important national programs caused by

incessant litigation and inconsistent decisions .. . [and] to

ensure uniformity in decisions concerning issues of more

than purely local or regional impact.” Lubrizol Corp. v.

Train, 547 F.2d 310, 315 (6th Cir. 1976) (internal citations

omitted). Rather than promoting uniformity, the Fourth

Circuit’s decision flies in the face of the purposes of

streamlined judicial review for nationally applicable

regulationzis.

The Clean Air Act requires modified sources to comply

with New Source Performance Standards (“NSPS”) and

Prevention of Significant Deterioration (“PSD”) require-

ments by, inter alia, installing emissions control technolo-

gies. 42 U.S.C. §§ 7411, 7470 et seg. Under the Act,

“modification” is defined as “any physical change in, or

change in the method of operation of, a stationary source

which increases the amount of any air pollutant emitted

by such source or which results in the emission of any air

pollutant not previously emitted.” 42 U.S.C. § 7411(a)(4).

Although in the Act itself the broad definition of modifica-

tion is identical for NSPS and PSD, the regulations for

these provisions are different in order to account for the

different purposes of the programs. “The focus of the NSPS

program ... [is) the particular apparatus to which a

standard is applied. The NSPS program is therefore

equipment oriented. On the other hand, the PSD program

covers the whole stationary source, and focuses on where

the plant will be located and its potentiai effect on its

environs. The PSD program is therefore site oriented.”

Northern Plains Resource Council v. EPA, 645 F.2d 1349,

1356 (9th Cir. 1981) (internal citations omitted). Given the

differing purposes of the programs, EPA promulgated regula-

tions establishing an hourly emissions test for determining

whether a physical or operational change constitutes a

“modification” under the NSPS program, while establishing

an annual emissions test for the PSD program. 40 C.FR.

§ 60.14 (NSPS); 40 C.F-R. § 51.166(b)(21 ii) (PSD). See also

New York v. Environmental Protection Agency, 413 F.3d 3,

18 (D.C. Cir. 2005) (“New York I”); Wisconsin Electric

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