Amicus Curiae Brief — Environmental Defense v. Duke Energy Corporation

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No. 05-848 JUL 2 1 2006

“OFFICE OF THE CLERK

ju Che

Supreme Court of the Gnited States

ENVIRONMENTAL DEFENSE,

NORTH CAROLINA SIERRA CLUB,

NORTH CAROLINA PUBLIC INTEREST RESEARCH

GROUP CITIZEN LOBBY/EDUCATION FUND,

Petitioners,

Vv.

DUKE ENERGY CORPORATION,

Respondent.

ON PETITION FoR WRIT OF CERTIORARI

To THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

° ,

BRIEF OF AMICI CURIAE IN SUPPORT OF PETITIONERS

WITH APPENDIX

Of Counsel Michael D. Goodstein

Jon A. Mueller Counsel of Record

Director of Litigation Stacey H. Myers

The Chesapeake Bay Julie Kaplan

Foundation, Inc. RESOLUTION Law Group, P.C.

5335 Wisconsin Ave., NW

Neil F. Woodworth Suite 305

Executive Director and Counsel Washington, D.C. 20015

Adirondack Mountain Club (202) 686-4844

Attorneys for Amici Curiae

Chesapeake Bay Foundation

and Adirondack Mountain Club

TABLE OF CONTENTS

Page

ee ee IE 65-5 oo Sa RE ksckereu eens 1

SE Ge Ge TE ous bo sc ccue nes cdechaest iV

INTEREST OF AMECICURIAE ...... cece cc ccceces ]

SUMMARY OF ARGUMENT ....................-. 4

ARGUMENT ......... pian ea ch aueaa 5

I. The Chesapeake Bay is a National

Treasure that Merits the Protection

Afforded by the PSD Program Limiting

Pollutants from Power Plants............ 7

A. Emissions from Coal-Fired

Power Plants Contribute

Significant Amounts of

Nitrogen to the Chesapeake

Bc. i kakn waa ee Ae ee 10

B. Excess Nitrogen in_ the

Chesapeake Bay Creates

Overwhelming Stresses on the

Bay’s Aquatic Life ............. 11

e. Emissions From Coal-lired

Power Plants Contribute

Significantly to Mercury

Pollution in the Chesapeake

ere Ua ieee oe LP ee 13

D. Mercury Pollution in_ the

Chesapeake Bay Poses a

Significant Risk to Health,

Economic Interests, and

WEE i. ca0tias nae cae tunes 16

If. The Adirondacks and Catskills Are

National Treasures that Merit the

Protection Afforded by the PSD

Program Limiting Pollutants from

NR nog Soe te Se ee es ee 18

A. Emissions from Coal-Fired

Power Plants Contribute to

Acid Rain, Acid Deposition,

and Smog in the Adirondacks

and Catskills, and Pose a

Significant Risk to Health,

Economic Interests, Plants, and

ES Soe car eee a 20

B. Mercury Pollution Poses a

Significant Risk to Health,

Economic Interests, and

Wildlife in the Adirondacks and

SE o 0024 we de Beas a Ce 24

IIL. Applying the CAA’s PSD Permitting

Program to Coal-Fired Power Plants

that Undergo Physical Changes and

Increase Emissions Will Help Save the

Chesapeake Bay, Adirondacks, and

she a) lan yd paw ake tale 26

ne. csi. au alee ae otek ob auntoenen 29

ill

APPENDIX |

APPENDIX 2

TABLE OF AUTHORITIES

CASES

Alaska Dept. Of Env'l Cons. v. EPA,

$40 U.S. 461 (2004) ...............00-

New York v. EPA,

443 F.3d 880 (D.C. Cir. 2006) .........

STATUTES

a aa ae rem Sree!

AZUBL. 4 MIND .:...... <<... 0 c00c

42 US.C.§ 7470 .......... ae 0 are

GPUBC. 8 MIR)... 5... sc ccecccccceees

ce Oe

I OI os ook ck ccc avevece.

RULES

REC NEE 00 2: Ao te ON ewe oe eek aed

eR eee ar

OTHER AUTHORITIES

H.R. Rep. No. 94-1175 (1976) ...............

Page(s)

vee Sf

H.R.Rep. No. 95-294 (1977), reprinted in

S77 UBLLAR, BFF occ csncdksuntecsaeuereeee 6

a SS MIEN hy 6

Adirondack Park Agency, The Adirondack Park, at

http://www.apa.state.ny.us/About Park/index.html

(ast WHSNNE THESTROGD 3 cc csnncvieccesanesesouaaes 19

Alan White, Mercury Advisories an Early Warning

of Atmospheric Pollution in the Catskills, 20

Kaatskill Life, No. 1, 12 (Spring 2005) ............... 25

The Catskill Center for Conservation and Development,

The Catskill Mountain Region, at

http://www.catskillcenter.org/region/region | .htm!

Cet VaR FUSED os cos ccscccenntesabbeeneeus 19

Charles T. Driscoll et al., Acid Rain Revisited:

Advances in Scientific Understanding Since the

Passage of the 1970 and 1990 Clean Air Act

Amendments, Hubbard Brook Research

Foundation (2001) available at

http://www. hubbardbrook.org/

hbrf/publications/Acid Rain Revisited.pdf ......... 21, 23

Charles T. Driscoll et al., Acidic Deposition in the

Northeastern United States: Sources and Inputs,

Ecosystem Effects, and Management Strategies,

BioScience, (March 2001) available at

http://www. ingentaconnect.com/content/aibs/

bio/2001/0000005 1/00000003/

art00004;jsessionid=w8yzjhl9lelf.alice ........... 22, 23

Charles T. Driscoll et al., Nitrogen Pollution in the

Northeastern United States: Sources, Effects, and

Management Options, 53 BioScience 357 (2003),

available at http://www.eeb.cornell.edu/goodale/

2003%20Driscoll%20etal%20Biosci.pdf ..... 8, 10, 12, 27

Chesapeake 2000 Agreement, Preamble, available at

http://www.epa.gov/region3/chesapeake/

uaasupport.htm (last visited 7/17/2000) ....... 7, 8, 10, 29

Chesapeake Bay Foundation, Mercury Deposition in

the Chesapeake, at http://www.cbf.org/site/DocServer/

facsheet final3 .pdf?docID=3923

EE 15

Chesapeake Bay Foundation, State of the Bay Report

2005, available at http://www.cbf.org/site/

PageServer?pagename=sotb 2005 index .............. 13

Chesapeake Bay Program, Air Pollution and the

Chesapeake Bay, slides titled Sources of Nitrogen

Loads to the Bay and Types of NOx Emission Sources

from States that Contribute the Most Nitrogen

Deposition to the Bay and Its Watershed

(January 6, 2000), available at

http://www.chesapeakebay.net/stressor|.htm ..... 9,11, 12

Chesapeake Bay Program, Air Pollution, at

http://www.chesapeakebay.net/air pollution.htm

IE a a oe 12

Chesapeake Bay Program, Bay Program Partners, at

http://www.chesapcakebay.nct/baypartners.htm (last

Sa PRES TE CR a a )

vil

Chesapeake Bay Program, Dissolved Oxygen: Annual

Assessment, available at

http://www.chesapeakebay.net/status.cfm?sid=207

I Si Lo oe as ee aues 2

Chesapeake Bay Program, Frequently Asked Questions

About Restoring Chesapeake Bay Water Quality (April

2003), available at http://www.chesapeakebay.net/

pubs/waterqualitycriteria/water quality faq final.PDF ..... 8

Chesapeake Bay Program, Reducing Nutrient

Pollution, at http://www.chesapeakebay.net/

nutr2.htm (last updated 10/04/2004) ................. 10

Chesapeake Bay Program, Simulated Nutrient and

Sediment Load Reductions (1985-2004), at

http://www.chesapeakebay.net/status.cfm?SID=186

rn. deh eus caeeebeubeues 29

Chesapeake Bay Program, What is Dissolved Oxygen

and Why is it Important to the Chesapeake Bay (July

2004) available at http://www.chesapeakebay.net/pubs/

doc-do_101_backgrounder.pdf ..................... 12

David C. Evers, Mercury Connections: The Extent

and Effects of Mercury Pollution in Northeastern North

America, BioDiversity Research Institute (2005),

available at http://www.nwf.org/wildlife/pdfs/

MercuryinWildlifeReport.pdf ................ 13, 17, 25

Department of Health and Human Services and

Environmental Protection Agency, What You Need to

Know About Mercury in Fish and Shellfish

(March 2004), at http://www.cfsan.fda.gov/

I 6 5 0 bviden >) She ece veh kaanes 17

Vill

Dr. Mark Cohen, NOAA Air Resources Laboratory,

Atmospheric Mercury. Emissions, Transport/Fate,

Source-Receptor Relationships

(January 19-20, 2006) available at

http://www.arl.noaa.gov/data/web/reports/cohen/cohen

niagara first talk version c.pdf .....................

Dr. Marc Cohen, NOAA Air Resources Lab,

Modeling the Fate and Transport of Mercury in the

Chesapeake Bay, 5/17/2004, at

http://www.arl.noaa.gov/data/web/reports/

cohen/20 Ches Bay talk.pdf (last visited 7/15/2006) ....

Ecological Effects Subcommittee of EPA Advisory

Council on Clean Air Compliance Analysis, Advisory

on Plans for Ecological Effects Analysis in the

Analytical Plan for EPA's Second Prospective

Analysis — Benefits and Costs of the Clean Air Act,

1990-2020, (June 23, 2005) available at

www.epa.gov/sab/pdf/council ees advisory council-

ws <p tii Saal pee magi eeicarar

Energy Information Administration, Office of Integrated

Analysis and Forecasting, U.S. Department of Energy

Analysis of Strategies for Reducing Multiple Emissions

from Power Plants: Sulfur Dioxide, Nitrogen Oxides,

and Carbon Dioxide (December 2000)

available at http://tonto.eia.doe.gov/F TPROOT/

PEs otk a cancbdee wes cuntendaccdue

Environmental Integrity Project, Dirty Kilowatts:

America’s Most Polluting Power Plants |

(May 2005), at hitp://www.cnvironmentalintegrity.org/

pubs/Dirty%20Kilowatts%20FINAL.pdf ............

EPA, Air Data, Generating Reports and Maps, at

http://www.epa.gov/air/data/reports.htm!

UR a le ee seme 26

EPA Acid Rain Program, Preliminary Summary Data

Reports, at http://www.epa.gov/airmarkets/emissions/

prelimarp/index.html (last visited 7/19/2006) .......... 26

EPA, Chesapeake Bay: Introduction to an Ecosystem,

EPA 903-R-04-003 (July 2004) available at

http://www.chesapeakebay.net/pubs/ecosystem.pdf ...... 9

EPA, Controlling Power Plant Emissions: Controlling

Mercury with Existing Controls, at

http://www.epa.gov/mercury/control emissions/tech

exist.htm (last updated July 5, 2006) ................. 28

EPA, Fate and Transport and Ecological Effects of

Mercury (last updated July 11, 2006), ar

http://www.epa.gov/mercury/eco.htm ................ 17

EPA, Fish Consumption Advisories for Mercury

(2004) at http://epa.gov/waterscience/fish/advisories/

slides2004 1 files/slideG tam ...... 2... cece ccc ecees 18

EPA, Health and Environmental Impacts of NOx,

supra note 67; see also EPA, Ground-level Ozone:

What is it? Where does it come from?

(last updated March 2, 2006) ar

http://www.cpa.gov/air/urbanair/ozone/what. htm!

I I 6 a lo eae a 21, 23, 24

EPA, How Nitrogen Oxides Affect the Way We

Live and Breath (September 1998), available at

http://www.epa.gov/oar/noxfldr.pdf ................. 11

EPA, Mercury Health Effects, at

http://www.epa.gov/mercury/effects.htm

ee I er I UD 60 0s hn bain enc ce eecetes 17, 18

EPA, Mercury Study Report to Congress, EPA-453/R-

98004a (U.S.Govt. Printing Office

URE vac ntinbivntin Dakae ve deadsunet 13

EPA, Monitoring Needed to Assess Impact of EPA's

Clean Air Mercury Rule on Potential Hotspots Report

No. 2006-P-00025 (May 15, 2006), available at

http://www.epa.gov/oig/reports/2006/200605 1 5-2006-P-

EIR a hy eye Fo ES ee 15

EPA National Estuary Program, Air Pollution and

Water Quality, at National Wildlife Federation,

Mercury in the Mid-Atlantic: Are States Meeting the

Challenge? (January 2005) at

http://www.epa.gov/owow/estuaries/a'rdep.htm

Se SD OIE io GAS uA On Sc Heh EEw a teas 10

EPA, Technical Support Document for Identification

of Chesapeake Bay Designated Uses and Attainability

(August 2003) (hereinafter Technical Support

Document), available at

http://www.epa.gov/region3/chesapeake/uaasupport/

EE 50s da cccknkaseetiarvsrvetes 7, 8,9, 13

Hubbard Brook Research Foundation, Testimony to

the United States Environmental Protection Agency in

Response to the EPA’s 2004 Mercury Regulatory

Package, available at

http://www.hubbardbrook.org/hbrf/IIBRE mercury

comments.pdf (last visited 7/14/2006) ................ 24

Jerry Jenkins et al., Adirondack Lakes

Survey Corp., Acid Rain in the Adirondacks:

A Research Summary. Adirondack Lakes Survey

Corporation (October 2005), available at

http://www.adirondacklakessurvey.org/sosindex.htm ... .

Kathryn R. Mahaffey et al., Blood Organic Mercury

and Dietary Mercury Intake: National Health and

Nutrition Examination Survey, 1999 and 2000, 112

Environmental Health Perspectives, No. 5

(April 2004), available at http://www.ehponline.org/

members/2003/6587/6587.pdf ........0..ceceeu eee

Kristen Chossek Malecki et al., The Chesapeake Bay

Health Indicators Project: Linking Ecological and

Human Health, available at

www.cbf.org/site/DocServer/

hopkins_061 4report.pdf?docID=1923 (last visited

NE ERE Sis OR Ree ear

March 19, 2004 Proclamation of George E. Pataki,

Governor, State of New York, available at

http://www.catskillpark.org/history/

ED 6 iid ecescuseddubwesdesseskhen

Maryland Department of the Environment, Fish

Facts for Pregnant Women, Women Who May

Become Pregnant, Nursing Mothers, Children Age 6

and Younger at http://www.mde.state.md.us/assets/

document/Fish%20Facts%20English.pdf#Fish A

Se Says ad fee fe ae aa

National Wildlife Federation, Controlling Mercury

from Power Plants: Current State of Technology

(April 2006) available at www.nwf.org/wildlife/pdfs/

MercuryPollutionControls.pdf .....-.----++0s0eeree: 28

National Wildlife Federation, Mercury in the

Mid-Atlantic: Are States Meeting the Challenge?

(January 2005) at http://www.nwf.org/wildlife/pdfs/

MercuryMidAtlantic.pdf .......----eess eres 16, 17, 18

National Wildlife Federation, Study Finds Maryland

Health Air Act Will Save Lives, Benefit Economy

(March 6, 2006), available at

http://www.nwf.org/news/story.cfm?pageld=

CFD3DC2 1_C42A_E6C7_D22B4652CBA6DC3C cas 29

Pennsylvania Department of Environmental Protection,

Data Collected Over Eight Years Shows Mercury Levels

47% Higher in Areas Near Power Plant

(May 31, 2006) at http://www.depweb.state.pa.us/news/

cwp/view.asp?a=3&q=507034 ....- 6. eevee eee ees 14

Sierra Club, Clean Air, Dirty Coal Power, at

http://www.sierraclub.org/cleanair/factsheets/

power.asp (last visited 7/ PEED vnc rccesesvcenes 11,14

Strategies for Reducing Multiple Emissions,

supra note 66 at ix; EPA, Health and Environmental

Impacts of NOx, at

http://www.epa.gov/air/urbanair/nox/hith.htm| Sachi os 21, 28

Xlil

Susan A. Korrick et al., Effects of Ozone and Other

Pollutants on the Pulmonary Function of Adult

Hikers, 106 Environmental Health Perspectives,

No. 2 (February 1998) available at

http://www.ehponline.org/docs/1998/106p93-

ek 24

Susan O’Brien, Study Released Today Reveals

Dangerously High Mercury Levels in Maryland Rain

(C.B.F. May 23, 2003), available at

www.cbf.org/site/News2?page=NewsArticle&id=6793 .. 17

Suzanne B. Bricker et al., National Oceanic and Atmospheric

Administration, National Ocean Service, National Estuarine

Etrophication Assessment, Effects

of Nutrient Enrichment in the Nation’s Estuaries

(September 1999), available at

http://spo.nos.noaa.gov/projects/cads/nees/

EE, oGinn a nEb SWAN Ae baes soe ais heen 1]

Testimony of New York Attorney General Eliot Spitzer

before the U.S. Environmental Protection Agency,

March 31, 2003, at http://www.oag.state.ny.us/press/

statements/usepa cleanair testimony.pdf .............. 20

Todd Kuiken et al., National Wildlife Federation,

Cycle of Harm. Mercury's Pathway from Rain to

Fish in the Environment (2™ ed. May 2003)

available at http://www.nwf.org/nwfwebadmin/

binary Vault/CycleofllarmFinalJ.pdf ............. passim

X1V

Victor B. Flatt & Kim Diana Connolly, Center for

Progressive Regulation ‘Grandfathered’ Air Pollution

Sources and Pollution Control: New Source Review

Under the Clean Air Act (March 2005), available at

http://www. progressiveregulation.org/articles/

“PRS “Dep ReR ethene ae

William C. Malm, National Park Service,

Introduction to Visibility (May 1999) available at

http://vista.cira.colostate.edu/improve/Education/

I ee as wis a pees

Yekaterina Korastash, EPA 's New Regulatory Policy:

Two Steps Back, 5 N.C.J.L. & Tech. 295

EE 60 9.6-6.6 6 Cun Fomsees eb iceescdin

INTEREST OF AMICI CURIAE'

The Chesapeake Bay Foundation (CBF) is the only

independent private nonprofit organization dedicated solely to

restoring and protecting the Chesapeake Bay and its tributary

rivers. Since 1967, CBF’s goal has been to improve water

quality by reducing pollution. CBF’s motto is Save the Bay.

The Chesapeake Bay watershed covers portions of 6

states (Delaware, Maryland, New York, Pennsylvania, West

Virginia, and Virginia) and the District of Columbia. The

Bay’s airshed is much larger. Air pollution, including

emissions from power plants, has substantial negative impacts

on the health of the Chesapeake Bay. Numerous aging and

uncontrolled power plants (i.e., without modern pollution

controls) operate in the Bay’s airshed. The Fourth Circuit’s

decision, if upheld, would eviscerate the “Prevention of

Significant Deterioration” (PSD) program and its requirement

to install the Best Available Control Technology (BACT) for

sources that modify their plants. Without a PSD program, such

sources in the Bay’s airshed would be permitted to continue

polluting the Bay. Thus, the control of emissions from power

plants at issue in this case is of particular significance to CBF’s

efforts to save the Bay.

The Bay suffers from nutrient overload, to which

nitrogen air pollution from power plants contributes a

significant amount. Excess nutrients cause algal blooms that

deplete the oxygen in the Bay, damaging critical resources. In

' Pursuant to Supreme Court Rules 37.3(a) 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. The letters of consent are being submitted with this brief.

2005, the amount of water with no oxygen in certain areas of

the Chesapeake Bay was among the worst on record. More

than three quarters of the Bay failed to meet dissolved oxygen

restoration goals in that summer.’

Mercury pollution is also a severe problem in the

Chesapeake Bay — and power plants are the major contributor

to mercury pollution in the Bay. Government advisories

prohibit or limit the consumption by pregnant women and

women of child-bearing age of numerous species of fish within

the Bay watershed (64,000 square miles) based upon mercury

contamination.’ Interpreting the PSD statutory and regulatory

provisions as they have been interpreted for almost 30 years

would require the installation of BACT on power plants that

make physical or operational changes that increase actual

emissions. The installation of BACT for sulfur dioxide and

nitrogen oxides on power plants within the Bay’s airshed will

produce a “co-benefit” of reducing mercury emissions and

significantly improve the Chesapeake Bay and the environment.

The Adirondack Mountain Club (ADK) is also a

membership-supported, non-profit organization. Its central

purpose is the preservation of the mountains, forests, lakes and

wilderness ecosystems of the Adirondack and Catskill Forest

Preserves so that they are “forever wild” as mandated by

Article 14, section | of the Constitution of the State of New

York. ADK’s members hike, canoe and camp in mountains,

Chesapeake Bay Program, Dissolved Oxygen: Annual

Assessment, available at http://www.chesapeakebay.net/status.cfm’?sid +207

(last visited 7/11/2006).

* See e.g, Maryland Department of the Environment, Fish Facts

for Pregnant Women, Women Who May Become Pregnant, Nursing

Mothers, Children Age 6 and Younger at http://www. mde.state.md.us/assets/

document F ish%20Facts%20English.pdf#Fish_A (last visited 7/18/2006).

forests and lakes of New York, Vermont, New Hampshire and

Maine. All of these wilderness recreation areas have been

severely impacted by mercury deposition, acid rain, and acid

deposition.

As in the Bay region, mercury emissions from power

plants are major contributors to contamination of fish and

wildlife in the Adirondacks and Catskills. Moreover, power

plants without modern pollution controls also emit high levels

of sulfur dioxide and nitrogen oxide that form acid deposition

and low-level ozone. These compounds contribute to the

acidification of lakes and streams, with severe impacts to flora

and fauna in these regions. They also impair visibility and

harm respiratory health. Nitrogen oxide also causes low level

ozone, another serious health risk. Reducing and eliminating

acid deposition, smog, haze and mercury emitted by coal-

burning power plants is therefore essential to preserving and

restoring the natural ecosystems and human appreciation of the

Adirondacks, the Catskills, and the Chesapeake Bay.

Both the enforceability and implementation of the Clean

Air Act’s PSD program (42 U.S.C. §§ 7470-79) at issue in this

case concern direct harms to the Bay, the Adirondacks, and the

Catskills, as well as to efforts by the CBF and ADK to reduce

air pollution. The efforts of CBF and ADK also promote an

express purpose of the PSD Program — to preserve, protect,

and enhance air quality in “areas of special national or regional

natural, recreational, scenic, or historic value,” 42 U.S.C. §

7470, like the Chesapeake Bay and the Adirondacks and

Catskills. See also 33 U.S.C. § 1267. Congress and EPA

designed the PSD program to safeguard air quality in these

areas, as well as others, by controlling emissions from new and

modified stationary sources, including coal-fired power plants

such as those of respondent in this case. How this Court

interprets the CAA and EPA’s PSD regulations at issue here

will have a direct impact upon sources within the Bay’s air and

water sheds and those within the Adirondacks’ and Catskills’

airshed, as well as upon the environment within these regions.

CBF’s efforts are supported by its 140,000 members,

volunteers, concerned citizens, advocates, and staff. CBF’s

staff of 170 — including scientists, policy experts, attorneys,

educators, and grassroots organizers — pursues its goal through

environmental advocacy, litigation, environmental education,

strategic communications, and habitat restoration throughout

the Chesapeake Bay watershed. CBF informs and engages the

public, the private sector, and government officials, in an effort

to obtain legislative and regulatory decisions and public and

private investments to save the Chesapeake Bay.

The efforts of the ADK, which was founded in 1922,

are supported by over 30,000 members with 26 chapters in New

York, New Jersey and New England. ADK’s mission is the

preservation of the natural ecosystems of the Adirondack and

Catskill Mountains as “forever wild.” N. Y. CONST. art. XIV.

ADK pursues the preservation and protection of these

wilderness lands, and hence the health and well being of its

members, through litigation and public policy advocacy at the

state and federal levels.

SUMMARY OF ARGUMENT

The purpose of this brief is to impress upon the Court

the importance of implementing the terms of the Clean Air Act

(CAA) in a manner that will accomplish what the plain

language, structure, and the intent of the CAA demand --

reducing air pollution. If the PSD program at issuc in this case

does not require aging and dirty power plants to control

pollutants when they make changes that increase emissions, the

Chesapeake Bay, the Adirondacks and Catskills, and this

country, will continue to suffer from excess air emissions. In

contrast, implementing the PSD Program as the CAA dictates

and as Congress intended will help save the Bay, the

Adirondacks and Catskills. The Chesapeake Bay Foundation

and Adirondack Mountain Club respectfully request that the

Court reverse the Fourth Circuit’s decision and apply the PSD

program to all sources with actual annual emission increases,

to promote clean air and protect the environment.

ARGUMENT

There are two issues in this case: first, did the Fourth

Circuit err in interpreting the CAA in a manner that allows

power plants to undertake physical changes that increase actual

annual emissions without complying with the PSD program, so

long as a power plant’s hourly emission rate does not increase.

Second, did the Fourth Circuit err in reviewing the validity of

EPA’s national CAA regulations in the context of an

enforcement action, when the CAA provides that such

regulations may be challenged exclusively in the D.C. Circuit

by petition for review, filed within 60 days of the regulations’

promulgation. 42 U.S.C. § 7607(b). While Petitioners’ brief

will address both of these important legal issues, and each

provides a compelling basis for reversal by the Supreme Court,

the Chesapeake Bay Foundation and the Adirondack Mountain

Club focus their amicus brief on the environmental impacts

associated with the Fourth Circuit’s approach to measuring

emission increases under the PSD program.

The CAA’s PSD program is part of the Act’s larger

“New Source Review” (NSR) program. NSR is “a permitting

process that imposes specific pollution control requirements

depending upon the geographic location of the source.” New

York v. EPA, 443 F.3d 880, 883 (D.C. Cir. 2006). To ensure air

quality in attainment areas, or areas that are already “clean,”

Congress enacted the statutory PSD program in the 1977

Amendments to the CAA so that the air quality in such areas

would not degrade. Alaska Dept. of Env'l Cons. v. EPA, 540

U.S. 461, 470-71 (2004). Congress was expressly concerned

with the quality of air in “areas of special national or regional

natural, recreational, scenic, or historic value.” 42 U.S.C. §

7470. The PSD legislation requires major modifications to or

construction of pollution sources in attainment areas to install

BACT. Installation of this technology during modification of

existing coal-fired power plants would control the emissions of,

inter alia, nitrogen oxide and sulfur dioxides, and would also

decrease mercury emissions.

In the 1977 amendments to the CAA, Congress

provided a qualified exemption to existing sources from PSD

requirements, arising out of the recognition that “it is not

physically or economically feasible to retrofit . . . control

technology” for some of the older or smaller sources. H.R.

Rep. No. 94-1175 at 159 (1976). Congress was confident,

however, that older plants would over time either shut down, or

by modifying, be required to control their pollution. These

assumptions proved not to be truce, due to extensive “life

extension” projects at these old coal-fired plants, and the failure

of utilities like Duke Power to comply with the requirements of

PSD permitting. See infra § Ill. Although the CAA gave older

plants a “pass” on immediately installing pollution control

technology, the PSD program was designed to revoke that pass

once modifications were made.

* See H.R.Rep. No. 95-294, at 211 (1977), reprinted in 1977

US.C.CA.N. 1077, 1290; S. Rep. No. 95-127, at *128 (1977)

(“approximately 200 coal-fired plants [are] over 20 years of age” and

“[mJost will be retired in the next 5 to 20 years”); Victor B. Flatt & Kim

Diana Connolly, Center for Progressive Regulation, ‘Grandfathered’ Air

Pollution Sources and Pollution Control: New Source Review Under the

Clean Air Act (March 2005), available at

http://www. progressiveregulation.org/articles/NSR_504_.pdf.

No one can seriously challenge that Congress’ 1977

Amendments to the CAA created “a law intended to limit

increases in air pollution.” New York, 443 F.3d at 886. As

noted above, modifications of stationary sources trigger the

PSD requirements. The CAA defines “modification” 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 ....” 42 U.S.C. § 741 1(a)(4)

(emphasis added). The Fourth Circuit’s decision construes the

CAA ina manner which is directly at odds with the mandate to

prevent increases in pollution, and will allow excessive and

controllable amounts of pollutants to continue to be emitted by

old and dirty power plants even where plants are upgraded to

extend their years of operation. Application of this decision

will result in substantial negative impacts on vital

environmental and natural resources, including the regions of

the Chesapeake Bay, the Adirondacks, and the Catskills.

L. The Chesapeake Bay is a National Treasure that

Merits the Protection Afforded by the PSD Program

Limiting Pollutants from Power Plants

The Chesapeake Bay, a national treasure, is the largest

and most biologically diverse estuary in North America.’ The

Chesapeake Bay is home to about 3,600 species of unique

animals, fish, and plants, including bald eagles, blue crabs,

menhaden, striped bass (rockfish), osprey, oysters, and the

> EPA, Technical Support Document for Identification of

Chesapeake Bay Designated Uses and Attainahility 14 (August 2003),

available at http://www.epa.gov/region3/chesapeake/uaasupport’

chapterii8 3.pdf (hereinafter Technical Support Document), Chesapeake

2000 Agreement, Preamble, available at http://www.epa.gov/region3/

chesapeake/uaasupport.htm (hereinafter Chesapeake 200U Agreement) (last

visited 7/17/2000).

American lotus.° One million waterfowl! spend the winter in

the Chesapeake Bay basin.’ As an estuary and coastal zone, it

is “among the most productive ecosystems on Earth.”*

The Chesapeake Bay and its tributaries have supported

the region’s economy and shaped its traditions and cultures for

over 300 years.’ In 1989, the Bay’s value was estimated to be

$678 billion." The Chesapeake Bay produces about 500

million pounds of seafood each year.'' Nearly sixteen million

people live in the watershed for the Chesapeake Bay.'”

* EPA, Technical Support Document, supra note 5 at 14;

Ecological Effects Subcommittee of EPA Advisory Counci! on Clean Air

Compliance Analysis, Advisory on Plans for Ecological Effects Analysis in

the Analytical Plan for EPA's Second Prospective Analysis - Benefits and

Costs of the Clean Air Act, 1990-2020, 12 (June 23, 2005) (hereinafter

Ecological Effects) available at www.epa.gov/sab/pdf/council_ees_

advisory_council-adv-05-001 pdf.

” EPA, Technical Support Document, supra note § at 14.

* Charles T. Driscoll et al., Nitrogen Pollution in the Northeastern

United States. Sources, Effects, and Management Options, 53 BioScience

357 (2003) (hereinafter Nitrogen Pollution), available at

http://www.eeb.cornell.edu/goodale/2003%20Driscoll%20etal%20Biosci

pdf.

* Chesapeake 2000 Agreement, supra note § at Preamble.

° Chesapeake Bay Program, Frequently Asked Questions About

Restoring Chesapeake Bay Water Quality (April 2003), available at

http://www.chesapeakebay.nevUpubs/waterqualitycriteria/water quality. faq

final. PDF.

'' Ecological Effects, supra note 6 at 12.

? EPA, Technical Support Document, supra note § at 18.

The Chesapeake Bay proper is approximately 200 miles

long, stretching from Havre de Grace, Maryland, to Norfolk,

Virginia. The Bay watershed encompasses 64,000 square miles

and some or all of six states and the District of Columbia."’

The Chesapeake Bay’s airshed is even larger — by 6.5 times —

covering roughly 1,081,600 square km (418,000 miles) in size,

and touching thirteen states.“

Reflecting the significance of the Chesapeake Bay to the

region and the country, three states - Maryland, Virginia, and

Pennsylvania — as well as the District of Columbia and the

federal government entered into agreements in 1983 and 1987

that establish the Chesapeake Bay Program partnership to

protect and restore the Bay’s ecosystem. [n 2000, these same

partners reaffirmed their commitments in the Chesapeake 2000

Agreement.'® This Agreement set forth the parties’ goal of

“continu[ing] efforts to achieve and maintain the 40 % nutrient

" EPA, Chesapeake Bay. Introduction to an Ecosystem, EP A 903-

R-04-003 (July 2004) available at

http://www.chesapeakebay .net/pubs/ecosystem.pdf; see, The Chesapeake

Bay Watershed attached hereto at Appendix |.

“ EPA, Technical Support Document, supra note § at 40-44;

Chesapeake Bay Program, Bay Stressors ~- Air Pollution, at

http://www.chesapeakebay.neV/air pollution.htm; see Chesapeake Bay

Program, Air Pollution and the Chesapeake Bay, slide titled Area of NOx

Emissions that Contribute Nitrogen Deposition to the Bay and Its

Watershed (January 6, 2000) (hereinafter Air Pollution and the Chesapeake

Bay), avuilable at http://www.chesapeakebay.net/stressor! htm, attached

hereto as Appendix 2.

'* New York, Delaware, and West Virginia are state partners in the

Chesapeake Bay Watershed. Chesapeake Bay Program, Bay Program

Partners, at http://www.chesapeakebay.net/bayparmers.htm (last visited

7/18/2006).

reduction goal agreed to in 1987.”'° The parties also agreed to

“assess the effects of airborne nitrogen compounds and

chemical contaminants on the Bay ecosystem and help establish

reduction goals ....”'’ In 2003, the six Bay watershed states

and the District of Columbia committed to reduce Bay nitrogen

loads by 110 million pounds from year 2000 levels.'*

[Installation of control technologies on power plants within the

Bay’s airshed under the PSD program would result in

substantial reduction of nitrogen entering the Bay.

A. Emissions from Coal-Fired Power Plants

Contribute Significant Amounts of Nitrogen

to the Chesapeake Bay

Approximately one third of the nitrogen that enters the

Chesapeake Bay comes from air pollution, and coal-fired power

plants are the largest source of this air pollution.'? Emissions

from coal-burning utilities account for approximately 25% of

the nitrogen oxide in the northeastern United States.”

Focusing on the seven states that contribute the most nitrogen

deposition to the Chesapeake Bay and its Watershed -

'° Chesapeake 2000 Agreement, supra note 5 at 5.

"Id. at 6.

‘* Chesapeake Bay Program, Reducing Nutrient Pollution, at

http://www.chesapeakebay.net/nutr2.htm (last updated 10/04/2004).

‘ EPA National Estuary Program, Air Pollution and Water Quality

(last updated 3/09/2006), at http://www.epa.gov/owow/estuaries/airdep.htm;

Chesapeake Bay Program, Air Pollution and the Chesapeake Bay, s\ides

titled Sources of Nitrogen Loads to the Bay and Types of NOx Emission

Sources from States that Contribute the Most Nitrogen Deposition to the

Bay and Its Watershed, supra note |4.

® Driscoll, Nitrogen Pollution, supra note 8 at 388.

Maryland, Virginia, Pennsylvania, New York, West Virginia,

New Jersey, and Ohio — utilities contribute an even greater

portion than the 25%,”' approximately 38% of the airborne

nitrogen from nitrogen oxide emission sources comes from

utilities. As described in section III, infra, installation of

pollution controls as required by PSD would substantially

reduce these emissions.

B. Excess Nitrogen in the Chesapeake Bay

Creates Overwhelming Stresses on the Bay’s

Aquatic Life

The Chesapeake Bay and its tributaries suffer from low

dissolved oxygen levels, which are a direct result of nitrogen

and phosphorus pollution.” Nutrient loading is one of the most

important causes of coastal eutrophication, which is the process

of excess nutrients accelerating algae growth, leading to

depletion of oxygen levels in water.” Eutrophication is one of

*' Nationally, coal-fired power plants contribute 93% of nitrogen

oxide emissions attributable to the generation of electricity. Sierra Club,

Clean Air, Dirty Coal Power (hereinafter Clean Air, Dirty Coal Power), at

http://www.sierraclub.org/cleanair/factsheets/power.asp (last visited

7/17/2006). —

2 Chesapeake Bay Program, Air Pollution and the Chesapeake

Bay, supra note 14.

*> Because phosphorus is not emitted from power plants in

significant amounts, its role in eutrophication is not discussed here.

** EPA, How Nitrogen Oxides Affect the Way We Live and Breath

(September 1998), available at http://www.epa.gov/oar/noxfldr.pdf. See

generally, Suzanne B. Bricker et al., National Oceanic and Atmospheric

Administration, National Ocean Service, National Estuarine Eutropication

Assessment, Effects of Nutrient Enrichment in the Nation's Estuaries, \-2,

25 (September 1999) (hereinafter Estuarine Eutrophication Assessment),

available at http://spo.nos.noaa.gov/projects/cads/nees/Eutro_Report.pdf.

the two most significant threats to the restoration of the

Chesapeake Bay. In eutrophication, nitrogen from nitrogen

oxide emissions and other sources converts into the reactive

form of nitrate, and then supports the growth of plants and

microbes2> Excess nitrates foster excessive growth of

microscopic plants called phytoplankton, also known as

“algae.” Algae sink to the bottom of the Bay when they die,

and their decomposition process removes Oxygen from the

water2° The animal life that traditionally filters the algae from

the Bay, such as oysters or menhaden, cannot possibly consume

all of the algae produced by excessive nitrogen loading,

compounding the Bay’s dissolved oxygen problem.”

“Overwhelmed” is the term now commonly used to

describe the condition of the Bay’s ecological system arising

from nutrient pollution.’ In 2002, 277 million pounds of

nitrogen pollution entered the Chesapeake Bay.” Recent

studies of the Bay’s health starkly establish the overwhelming

stresses this creates. In 2001, “half of the Chesapeake Bay’s

deeper waters had reduced dissolved oxygen concentrations,”

25 Driscoll, Nitrogen Pollution, supra note 8 at 357.

2% Chesapeake Bay Program, Air Pollution, at

http://www.chesapeakebay.neVair _pollution.htm (last updated 8/08/2005).

”” Chesapeake Bay Program, What is Dissolved Oxygen and Why

is it Important to the Chesapeake Bay (hereinafter Dissolved Oxygen) 3

(July 2004) available at http://www.chesapeakebay.nev pubs/doc-do_101_

backgrounder.pdf, cf Bricker, Estuarine Eutrophical Assessment, supra

note 24 at 24.

8 See, e.g, Chesapeake Bay Program, Dissolved Oxygen, supra

note 27.

2” Chesapeake Bay Program, Tributary Strategy Tools, Summary

Loads and Land Use Acreage, at http://www .chesapeakebay. nev

tribtools.htm (last visited 7/19/2006).

stressing aquatic life, and sometimes reaching such low

concentrations of oxygen that the waters become lethal to

aquatic plants and animals.” In 2005, “the amount of water

with no oxygen in the Bay’s main stem was among the worst

on record.”*' Moreover, the extent of the Bay’s dead zone

stretched further south than in most years, nearly reaching the

mouth of Virginia’s York River, one of the Bay’s southern-

most tributaries. Hence, controlling nitrogen oxide emissions

from coal-fired power plants, as the CAA’s PSD program was

created to do, is vital to the health of the Bay.

C. Emissions From Coal-Fired Power Plants

Contribute Significantly to Mercury

Pollution in the Chesapeake Bay

Coal-fired power plants are the largest emitters of

mercury in the United States.”* Nationally, about one third of

*° EPA, Technical Support Document, supra note § at 19.

>‘ Chesapeake Bay Foundation, State of the Bay Report 2005, \-2,

available at http://www.cbf.org/site/PageServer?pagename=sotb 2005 _

index.

2 EPA, Mercury Study Report to Congress, EPA-453/R-98004a

(U.S.Govt. Printing Office Wash., DC, Dec. 1997); David C. Evers,

Mercury Connections. The Extent and Effects of Mercury Pollution in

Northeastern North America, BioDiversity Research Institute 5 (2005)

(hereinafter Mercury Connections), available at

http://www.nwf.org/wildlife/pdfs/Mercuryin WildlifeReport.pdf; see also

Dr. Mark Cohen, NOAA Air Resources Laboratory, Atmospheric Mercury:

Emissions, Transport/Fate, Source-Receptor Relationships, 7, 9 (January

19-20, 2006) available at http://www.ar!.noaa.gov/data/web/reports/cohen/

cohen_niagara_first_talk version c.pdf.

mercury in the environment comes from these plants.’ When

coal is burned to produce electricity, trace amounts of mercury

are released into the air. The mercury travels to earth through

rain, snow, and dry particles.* Depending upon other

environmental and chemical factors, the mercury is converted

into methylmercury and accumulated by biological organisms

including fish. Humans consume many of these fish species.

Studies have shown that, in general, mercury

contamination is higher in areas closer to mercury sources, like

power plants.** One study conducted for the Pennsylvania

Department of Environmental Protection has shown that

mercury levels were 47% higher in areas closer to power

plants.° An EPA- funded study also found that 70% of the

mercury collected at an Ohio River Valley monitoring site

» Environmental Integrity Project, Dirty Kilowatts: America's

Most Polluting Power Plants 1 (May 2005), at

http://www.environmentalintegrity.org/pubs/Dirty%20K ilowatts%20FIN

AL.pdf.

** Sierra Club, Clean Air, Dirty Coal Power, supra note 21.

** Pennsylvania Department of Environmental Protection, Data

Collected Over Eight Years Shows Mercury Levels 47% Higher in Areas

Near Power Plant (May 31, 2006) (hereinafter Mercury Levels Data) at

http://www.depweb.state.pa.us/news/cwp/view.asp?a=3&q=507034.

Pennsylvania has an extensive network for analyzing the extent of mercury

contamination in rain. See todd Kuiken et al., National Wildlife

Federation, Cycle of Harm. Mercury's Pathway from Rain to Fish in the

Environment, 18 (2™ ed. May 2003) (hereinafter Cycle of Harm) available

at http://www.nwf.org/nwfwebadmin/binary Vault/CycleofHarme inal) pdf.

Levels Data, supra note 35.

originated from nearby coal-burning industrial facilities.*’

Moreover, the closer a source of mercury is to a body of water,

the more likely it is to contribute to mercury pollution in that

body of water.** Not surprisingly, the thirteen coal-fired power

plants in the proximity of the Chesapeake Bay contribute the

most to mercury in the Bay. *°

In Maryland, in heart of the Chesapeake Bay region,

average mercury levels in rain were the highest of twelve states

assessed in one recent study.“ The top source of mercury

pollution in that state is power plants, which contribute more

than 40% of mercury emissions.*' In another Chesapeake Bay

state — Pennsylvania - the top ten mercury sources are all

power plants.’ The reduction of mercury emissions would be

” See EPA, Monitoring Needed to Assess Impact of EPA's Clean

Air Mercury Rule on Potential Hotspots Report No. 2006-P-00025, 12 (May

15, 2006), available at http://www.epa.gov/oig/reports/2006/200605 | 5-

2006-P-00025 pdf.

** Chesapeake Bay Foundation, Mercury Deposition in the

Chesapeake, at http://www.cbf.org/site/DocServer/facsheet_final3 .pdf?

docID=3923 (hereinafter Mercury Deposition) (last visited 7/15/2006)

(referencing Marc Cohen, NOAA Air Resources Lab, Modeling the Fate

and Transport of Mercury in the Chesapeake Bay, 5/17/2004, at

http://www.arl.noaa.gov/data/web/reports/cohen/20_Ches_Bay_talk.pdf

(hereinafter Mercury Fate and Transport) (last visited 7/15/2006)).

*’ Chesapeake Bay Foundation, Mercury Deposition; supra note

38; see also Cohen, Mercury Fate and Transport, supra note 38. —

” Kuiken, Cycle of Harm, supra note 35 at 22.

*" Kristen Chossek Malecki et al., The Chesapeake Bay Health

Indicators Project. Linking Ecological and Human Health, 24 available at

www.cbf.org/site/DocServer/hopkins_ 0614report.pdf?dociD=1923 (last

visited 7/15/2006).

* Kuiken, Cycle of Harm, supra note 35 at 88.

an added benefit from installing emission control technology

for nitrogen oxides and sulfur dioxide. See infra note 92.

D. Mercury Pollution in the Chesapeake Bay

Poses a Significant Risk to Health, Economic

Interests, and Wildlife

The Chesapeake Bay Region has some of the highest

mercury levels in the nation.*? According to one national

study, mercury contamination in states including Maryland and

Pennsylvania consistently exceeded EPA’s “safe” standards for

mercury in surface waters. [n both of these states, over 90 % of

rain samples revealed mercury levels greater than EPA’s human

health standard for mercury in lakes. In Maryland, the average

rain sample collected was over five times above that standard.“

Elevated levels of mercury in the environment create a

serious risk to the health of humans and wildlife, as well as to

our economy.*” Methylmercury” is “bioaccumaltive,” which

means that its concentration increases as wildlife, fish and

people consume contaminated food. For example, fish tissue

concentrations can reach levels that are over a million times

higher than in surrounding water.*’ Thus, “a very low level of

methylmercury in the environment can produce an extremely

” Kuiken, Cycle of Harm, supra note 35 at 22, 67.

“ Kuiken, Cycle of Harm, supra note 35 at 65, 89.

“ National Wildlife Federation, Mercury in the Mid-Atlantic: Are

States Meeting the Challenge? | (January 2005) (hereinatter Mercury in the

Mid-Atlantic) at http://www .nwforg/wildlife/pdfs/MercuryMidAtlantic.pdf

“© When mercury enters rivers and lakes, it is then converted to

methylmercury, its most toxic form. /d. at 2.

* Kuiken, Cycle of Harm, supra note 35 at 10.

high body burden in animals at the tops of food chains. In the

case of mercury, a little bit goes a long way.”

Consuming mercury contaminated fish presents severe

danger to humans and wildlife. Mercury is a potent neurotoxin

that damages the growth and function of the central nervous,

cardiovascular, and reproductive systems.*” In wildlife,

mercury “is a reproductive hazard with harmful effects on

species such as rainbow trout, ze’: fish, mallard and American

black ducks, loons and terns, otters and mink.”*’ Adverse

effects of exposure to methylmercury on wildlife “can include

mortality (death), reduced fertility, slower growth and

development and abnormal behavior that affects survival... .”*'

In humans, mercury’s capacity to inhibit the growth of

the developing brain makes it especially harmful to young

children.*? Ingestion of mercury can damage fetal nervous

systems.” EPA research estimates that one in six women of

** Evers, Mercury Connections, supra note 32 at 6.

** National Wildlife Federation, Mercury in the Mid-Atlantic,

supra note 45 at 2.

*® Susan O’Brien, Study Released Today Reveals Dangerously

High Mercury Levels in Maryland Rain (C.B.F. May 23, 2003) available at

www .cbf.org/site/News2?page=NewsArticle&id=6793.

*' EPA, Fate and Transport and Ecological Effects of Mercury

(last updated July 11, 2006), at http://www.epa.gov/mercury/eco.htm.

* Kuiken, Cycle of Harm, supra note 35 at 12.

** Department of Health and Human Services and Environmental

Protection Agency, What You Need to Know About Mercury in Fish and

Shellfish (March 2004), at http://www.cfsan.fda.gov/~dms/admehg3 .html;

see also EPA, Mercury Health Effects (hereinafter Mercury Health Effects),

at http://www.epa.gov/mercury/effects.htm (last visited July 19, 2006).

childbearing age has blood-mercury levels that may put their

children at risk of learning or developmental problems.”

Each of the States bordering the Chesapeake Bay has

issued health advisories for the consumption of mercury

contaminated fish.°’ Maryland has issued a statewide fish

consumption advisory limiting consumption of rockfish, or

striped bass, a major commercial and recreational species.”

The prevalence of fish consumption advisories arising from

mercury in fish is an increasing threat to the country’s multi-

billion dollar fishing industry’ including the 500 million

pounds of seafood produced by the Chesapeake Bay.

Il. The Adirondacks and Catskills Are National

Treasures that Merit the Protection Afforded by the

PSD Program Limiting Pollutants from Power

Plants

The two parks that are central to ADK’s mission are the

Adirondack Park and the Catskill Park. The six-million acre

* Kathryn R. Mahaffey et al., Blood Organic Mercury and Dietary

Mercury Intake: National Health and Nutrition Examination Survey, 1999

and 2000, 112 Environmental! Health Perspectives, No. 5, 562, 565 (April

2004), available at http://www.ehponline.org/members/2003/6587/

6587.pdf; see also EPA, Mercury Health Effects, supra note 53.

*° EPA, Fish Consumption Advisories for Mercury (2004) at

http://epa.gov/waterscience/fish/advisories/slides2004-1! _files/slide6.html.

supra note 45 at 8; Maryland Dept. of the Environment, Recommended

Maximum Meals Each Year for Maryland Waters (April 2006) at

http://www.mde.state.md.us/assets/document/Fish Consumption

_Advisory 2006.pdf#Recommended Meals Per Year.

*? National Wildlife Federation, Mercury in the Mid-Atlantic, supra

note 45 at 2.

Adirondack Park, created by the State of New York in 1892, is

the largest publicly-protected area in the contiguous United

States. [t is larger than the Yellowstone, Everglades, Glacier,

and Grand Canyon National Parks combined.’ The

Adirondack region has over 3,000 lakes, 30,000 miles of rivers

and streams, and a large variety of habitats, including globally

unique wetlands and old growth forests.” Approximately half

of the Adirondack Park belongs to the people of New York

State and is constitutionally protected as a “forever wild” forest

preserve.” The remaining half of the park is private land, with

about 130,000 people living in its 105 towns and villages.°'

The Catskill Mountain region is often referred to as

“America’s First Wilderness” because scholars have traced the

beginnings of the conservation movement to this area.”

Established in 1904, the Catskill Park also is a combination of

private and public land. Over one third of its 700,000 acres is

public forest preserve land, protected as “forever wild” under

the New York State Constitution. The Catskill region itself

encompasses over 6,000 square miles of mountains, forests,

*8 Adirondack Park Agency, The Adirondack Park, at

http://www.apa.state.ny.us/About_Park/index.html (last visited 7/15/2006).

°° [d. at http://www.apa.state.ny.us/About Park/more park.html

(last visited 7/15/2006).

6° /d. at http://www.apa.state.ny.us/About Park/index.htm! (last

visited 7/15/2006).

*' Jd. at http://www.apa.state.ny.us/About_Park/more_park.html|

(last visited 7/15/2006).

* The Catskill Center for Conservation and Development, The

Catskill Mountain Region, at http://www.catskillcenter.org/region/

region! . html (last visited 7/15/2006).

rivers and farmland.® This region has played a significant role

in shaping the culture of the United States. It is the birthplace

of American fly fishing, the backdrop for paintings by the

Hudson River School of artists, and the home of the legendary

Rip Van Winkle and the renowned naturalist and writer John

Burroughs. The Catskill region was one of the first resort

destinations in the United States, and serves as the watershed

which provides water for millions of New Yorkers.“ The

Adirondack and Catskill Parks’ mixtures of private lands,

protected open space and recreational lands, wildlife,

mountains and meadows, and diverse population is truly

exceptional and must be preserved.

A. Emissions from Coal-Fired Power Plants

Contribute to Acid Rain, Acid Deposition,

and Smog in the Adirondacks and Catskills,

and Pose a Significant Risk to Health,

Economic Interests, Plants, and Wildlife

The Adirondacks and Catskills are downwind of

numerous coal-burning power plants, whose emissions have

damaged lakes and forests in these regions.” Coal-fired

powerplants emit high levels of sulfur dioxides and nitrogen

63 ld

* March 19, 2004 Proclamation of George E. Pataki, Governor,

State of New York, available at http://www.catskillpark.org/history/

proclamation.htm.

* ‘Testimony of New York Attorney General Eliot Spitzer before

the U.S. Environmental Protection Agency, March 31, 2003, (hereinafter

Spitzer Testimony) at http://www.oag. state ny.us/press/statements/usepa_

cleanair_testimony pdf.

oxides,” which are significant contributors to the formation of

ozone, acid rain and acid deposition in the Adirondacks and

Catskills. Emissions of sulfur dioxides and nitrogen oxides

react with other compounds in the air to form acids which reach

earth through rain, snow, fog, or as dry particles.*’ In the

Northeastern United States, numerous acid sensitive forest and

freshwater aquatic regions suffer from the ecological damage

and health problems associated with acid rain and acid

deposition.”

Forty-one percent of lakes in the Adirondacks and

fifteen percent of lakes in New England suffer from chronic or

episodic acidification. Elevated levels of nitric and sulfuric

acid significantly reduce the water’s acid-neutralizing capacity.

This acidic condition reduces species diversity and the

abundance of aquatic life.” | As one example, acid deposition

* Energy Information Administration, Office of Integrated Analysis

and Forecasting, U.S. Department of Energy Analysis of Strategies for

Reducing Multiple Emissions from Power Plants: Sulfur Dioxide, Nitrogen

Oxides, and Carbon Dioxide, ix, xx (December 2000) (hereinafter

Strategies for Reducing Emissions), available at

http://tonto.eia.doe.gov/FT PROOT/service/oiaf0005 .pdf.; see also supra §

i{A) (discussing nitrogen oxide emissions).

*’ Strategies for Reducing Multiple Emissions, supra note 66 at ix;

EPA, Health and Environmental Impacts of NOx (hereinafter Health and

Environmental Impacts of NOx), at http://www.epa.gov/air/urbanair/nox/

hith.htm!.

*§ Charles T. Driscoll! et al., Acid Rain Revisited: Advances in

Scientific Understanding Since the Passage of the 1970 and 1990 Clean Air

Act Amendments, 4-5, Hubbard Brook Research Foundation (2001)

(hereinafter Acid Rain Revisited) available at

http://www hubbardbrook.org/hbrf/publications/Acid_Rain_Revisited. pdf.

°° Id. at 4, 11, 17.

sets off a deadly chain of events for fish. High levels of acidic

deposition and high soil acidity, to which power plant

emissions contribute, occur in the forests of the Adirondacks

and Catskills. The combination of high soil acidity and high

levels of acid deposition, which in turn contributes to low soil

calcium levels, often fosters the release of aluminum from the

soil into lakes and streams. Aluminum, in combination with

high acidity levels in waters, is highly toxic. It disrupts the salt

and water balance in fish, which can rupture blood cells and

thicken fish blood, placing an enormous strain on fish hearts,

and leading to deadly heart attacks.”

Acid deposition also has a deadly impact on other plant

and animal life in the Northeast. Acid deposition accelerates

leaching of calcium from soil,”’ which can adversely impact

plant life by depleting soils of this nutrient, which is essential

for plant growth. Elevated levels of acid in soil also cause

nutrients to leach out of trees, which can cause a nutrient

imbalance, reducing the ability to respond to environmental

stresses such as cold weather, drought or insect infestation.”

In turn, animals that depend on plant life for food suffer as poor

soil conditions adversely impact plant growth. For example,

red spruce trees at high elevations have suffered a serious

decline as a result of acid deposition. Acidified soil causes

” Id. at 11-12, 17.

” Charles T. Driscoll et al., Acidic Deposition in the Northeastern

United States: Sources and Inputs, Ecosystem Effects, and Management

Strategies, BioScience, 180, 185 (March 2001) (hereinafter Acidic

Deposition), available at http://www. ingentaconnect.com/content/aibs/bi0/

200 1 /0000005 1 /00000003/art00004 ;jsessionid=w8yzjhi9 | elf.alice.

* Id. at 180, 187-188.

unusually high mortality rates for red spruce forests.” Since

the 1960’s, more than half of the large canopy red spruce trees

in the Adirondacks and Vermont’s Green Mountains, and one-

quarter of these trees in New Hampshire’s White Mountains

have died. Acid deposition decreases red spruces’ tolerance of

cold temperatures, leading to tree damage or death.“ This

decline of red spruce trees is, in turn, detrimental to the unique

and endangered species who rely on the tree for their habitat.”

Smog and decreased visibility are other problems

exacerbated by emissions from coal-fired power plants.

Ground level ozone, or smog, is formed when nitrogen oxides

and volatile organic compounds react in the presence of

sunlight.”° This smog decreases visibility for hikers and others

recreating in the region. In the Northeast mountains, on the

haziest days, atmospheric sulfates contribute an estimated 70 %

of the particulate matter that impairs visibility.” In addition,

ozone exposure is detrimental to the health of some of the

hikers. In one study with prolonged outdoor exercise, adult

hikers in New Hampshire who were exposed to low-leveils of

particulate matter and ozone were likely to experience

Driscoll, Acid Rain Revisited, supra note 68 at 13.

74 ld

> Driscoll, Acidic Deposition, supra note 7| at 180, 187.

see also EPA, Ground-level Ozone: What is it? Where does it come from?

(last updated March 2, 2006) at http://www.cpa. gov/air/urbanair/ozone/

what.html.

” William C. Malm, National Park Service, /ntroduction to

Visibility, 33 (May 1999) available at http://vista.cira.colostate.edu/

improve/Education/intro_to visibility.pdf.

significant effects on pulmonary function.” Detrimental

human health effects resulting from ozone exposure include

coughing, shortness of breath, and pain with inhalation.”

B. Mercury Pollution Poses a Significant Risk

to Health, Economic Interests, and Wildlife

in the Adirondacks and Catskills

The Adirondacks and Catskills are also downwind of

many coal-fired power plants,"” whose emissions of mercury

contribute significantly to mercury pollution in those regions.

Like the Chesapeake Bay, mercury pollution poses serious

health and environmental problems for the lakes, rivers, and

wildlife of this region. Ninety-six percent of the lakes in the

Adirondack region and forty percent of the lakes in New

Hampshire and Vermont exceed the recommended EPA action

level for methylmercury in fish.*' High mercury levels in fish

from six reservoirs in the Catskills have prompted advisories

”® Susan A. Korrick et al., Effects of Ozone and Other Pollutants

on the Pulmonary Function of Adult Hikers, 106 Environmental Health

Perspectives No. 2, at 1-2 (February 1998) available at

http://www.ehponline.org/docs/ 1998/1 06p93-99korrick/korrick-full.html.

” EPA, Health and Environmental Impacts of Ground-level Ozone,

at http://www.epa.gov/air/urbanair/ozone/hith.html (last visited 7/12/2006).

*° Spitzer Testimony, supra note 65

*'Hubbard Brook Research Foundation, Testimony to the United

States Environmental Protection Agency in Response to the EPA’s 2004

Mercury Regulatory Package, 2, available at

http://www. hubbardbrook.org/hbrf/HBRF mercury_comments.pdf (last

visited 7/14/2006).

that infants, children under the age of fifteen, and women of

childbearing age not eat any fish from these reservoirs.”

The Northeast region also includes several mercury

biological “hot spots,” where high mercury levels have been

recorded in fish, loons, eagles, and other animals.”

Bioaccumulation of mercury in wildlife has reached alarming

levels. According to one report, mercury is now present in

about two-thirds of Adirondack loons at levels that negatively

impact their reproductive capacity, posing a significant risk to

their survival.’ Likewise, approximately one third of otters

and mink sampled in the northeastern United States had levels

of mercury in their systems which challenge their reproductive

success." Problems associated with mercury accumulation

appear not to be limited to surface waters and wildlife that use

them: mercury is also accumulating in songbirds in nearby

mountain forests, like the Bicknell’s thrush—a terrestrial, insect

eating songbird. Based upon this data, as well as other

information, scientists have concluded that wildlife in the

* Alan White, Mercury Advisories an Early Warning of

Atmospheric Pollution in the Catskills, 20 Kaatskil! Life No 1, at 12 (Spring

2005).

® Evers, Mercury Connections, supra note 32 at 18.

* Jerry Jenkins et al., Adirondack Lakes Survey Corp., Acid Rain

in the Adirondacks: A Research Summary, 173-74 (October 2005),

available at http://www.adirondacklakessurvey.org/sosindex htm.

* Id. at 174.

* Evers, Mercury Connections, supra note 32 at 16 (pertaining to

birds in the western Maine mountains).

Catskill Mountains “are potentially at greater ecological risk for

mercury accumulation” than other regions in the Northeast.*’

Ill. Applying the CAA’s PSD Permitting Program to

Coal-Fired Power Plants that Undergo Physical

Changes and Increase Emissions Will Help Save the

Chesapeake Bay, Adirondacks, and Catskills

The approach adopted by the Fourth Circuit will allow

dirty and aging power plants to make major renovations that

prolong and increase their operations, including increasing the

emission of harmful pollutants, without installing modern

pollution control devices. This directly contravenes the text,

structure, and purpose of the CAA’s PSD program. The net

result of the approach adopted by the Fourth Circuit would,

rather than /imit pollution increases, permit significant

increases, which cannot be what Congress intended for the

CAA, given its overarching goals and purposes. Aging, largely

uncontrolled power plants already emit far more air pollution

than those currently required to have pollution control

equipment.” By requiring aging power plants to retrofit only

when they undertake a physical or operational change that

increases their hourly emissions rate, the Fourth Circuit’s test

* Id.

** A vast majority of the NOx and mercury emissions in the

Chesapeake Bay Airshed comes from coal- fired power plants that do not

have BACT. According to EPA data, in 2005, 155 out of 161 sources did

not have BACT, and accounted for approximately |.17 out of 1.20 million

tons of NOx emitted. See EPA Acid Rain Program, Preliminary Summary

Data Reports, at http://www.epa.gov/airmarkets/emissions/prelimarp/

index.htm! (last visited 7/19/2006). Based upon EPA’s 1999 data for

mercury emissions, these same sources accounted for approximately 38 out

of 39 thousand pounds of mercury emitted in that year. EPA, Air Data,

Generating Reports and Maps, at http://www.epa.gov/air/data/reports.htm!

(last visited 7/19/2006).

will allow these plants to emit excessive amounts of pollutants

for greater periods of time, yielding an uncontrovertable net

increase in pollutants. By contrast, Congress’ statutory design

anticipated that these dirty plants would either close, or when

modified to extend their operating lives, be required to contro!

and reduce their emissions. Allowing such plants to escape the

statutory PSD obligations will not facilitate protection of the air

in “areas of special national or regional natural, recreational,

scenic, or historic value,” 42 U.S.C. § 7470, but rather will

impede such protection. See also Brief of the State of New

York et al as amici curiae in Support of Petitioners.

The environmental implications of this issue are

considerable. The number of operating power plants in this

country between 30 and 50 years old is as high as 600. These

plants “are up to ten times dirtier than new power plants built

today.”*” According to one scientist who has studied the

impacts of excessive nutrients in the Northeastern United

States, combining aggressive controls of nitrogen from utilities

with an aggressive mobile source reduction plan “would

produce important reductions in estuarine loading.” One

government study analyzing the emission reductions and price

implications of NSR enforcement actions by the Justice

Department and the states demonstrated that broadening these

actions to address all non-NSR compliant electrical generating

plants would potentially decrease nitrogen oxide emissions by

65% by 2020 and sulfur dioxide by 84% by 2020, as compared

*° Yckaterina Korastash, EPA ‘s New Regulatory Policy: Two Steps

Back, 5 N.C.J.L.. & Tech. 295, 295 (Spring 2004); see also Sierra Club,

Clean Air, Dirty Coal Power, supra note 21.

” Driscoll, Nitrogen Pollution, supra note 8 at 370.

to 2000 emission levels.”' Moreover, the installation of

modern pollution controls at coal-fired power plants under the

PSD program would substantially reduce their mercury

emissions.” Importantly, reducing mercury emissions may

lead to a decrease in levels of contamination in downwind

waters in only a matter of years,” which would significantly

improve the health of the Chesapeake Bay and rivers and lakes

in the Adirondacks and Catskills.

In contrast, affirming the approach adopted by the

Fourth Circuit would frustrate commitments made by states

surrounding the Chesapeake Bay, the District of Columbia, and

the Federal government to reduce nitrogen loadings to the Bay

through the Chesapeake Bay 2000 Agreement. If older plants

can make changes that increase their emissions without going

through the PSD permit process, these governments will not

be able to live up to their commitments in this agreement. In

2003, the six Bay watershed states and the District of Columbia

committed to reduce nitrogen from its 2000 level of 285

million pounds entering the Bay to no more than 175 million

pounds per year — a reduction intended to foster conditions in

the Bay that are healthier for the thousands of plants and

*' Strategies for Reducing Emissions, supra note 66 at 59-63.

2 See EPA, Controlling Power Plant Emissions: Controlling

Mercury with Existing Controls, at

http://www.epa.gov/mercury/control emissions/tech_exist.htm (last updated

July 5, 2006); cf National Wildlife Federation, Controlling Mercury from

Power Plants: Current State of Technology (April 2006) available at

www.nwf_org/wildlife/pdfs/MercuryPollutionControls.pdf (terms of the

CAA’s PSD program themselves do not specifically require controls of

mercury, however, the technology that they do require produces the “co

benefit” of significant mercury reductions).

® Kuiken, Cycle of Harm, supra note 35 at 1).

animals living in its ecosystem.” But as of 2004, annual

nitrogen inputs to the Bay were 2.5 times greater than the 80

million kilogram level needed to meet the terms of the

Chesapeake 2000 Agreement.” Air emissions from power

plants make up a large part of that number. See supra § I(A).

Likewise, controlling pollution from power plants will

reap important environmental benefits in the Adirondacks and

Catskills. Added to the benefits of decreasing mercury

emissions, reducing power plant pollutant emissions wil] also

help reduce the acidification of lakes and rivers that is so

harmful to plant and animal life in the Adirondacks and

Catskills. Reducing emissions of pollutants will also improve

visibility and human health by decreasing ozone.

Aside from these important direct environmental

benefits to the Chesapeake Bay, Adirondacks, and Catskills

from reducing power plant emissions, other benefits should

also be considered. Studies have shown that the economic

benefits of reducing pollutants like mercury and nitrogen oxide

far outweigh their costs.”

CONCLUSION

Congress, in enacting the PSD program as part of the

* Chesapeake Bay Program, Simulated Nutrient and Sediment

Load Reductions (1985-2004), at http://www.chesapeakebay.net/

status.cfm?SID=186 (last visited 7/17/2006).

* Ecological Effects, supra note 6 at 20.

*° National Wildlife Federation, Study Finds Maryland Health Air

Act Will Save Lives, Benefit Economy (March 6, 2006), available at

http://www.nwf.org/news/story.cfm?pageld=CFD3DC2 1-C42A-E6C7-D

22B46S2CBA6DC3C.

CAA, declared that one of its purposes is to “preserve, protect,

and enhance the air quality in . . . areas of special national or

regional natural, recreational, scenic, or historic value.” 42

U.S.C. § 7470(2). The Chesapeake Bay, the Adirondacks, and

the Catskills are undoubtedly such special areas. For years,

they have suffered multiple harmful environmental effects of

excessive emissions of mercury, nitrogen oxides, and sulfur

dioxides from coal-burning power plants. Implementing the

PSD program to require these plants to control their harmful

emissions when they make changes that increase actual annual

emissions is necessary to assure that these special areas are not

further damaged, but rather are preserved, protected, and

enhanced, as Congress intended.

The Chesapeake Bay Foundation and the Adirondack

Mountain Club respectfully request that the Court reverse the

decision of the Fourth Circuit and apply the PSD program to

projected annual emission increases, to promote clean air and

protect the environment.

Respectfully submitted,

Michael D. Goodstein

Counsel of Record

Stacey H. Myers

Julie Kaplan

Resolution Law Group, P.C.

5335 Wisconsin Ave., NW

Suite 305

Washington, D.C. 20015

202-686-4844

Attorneys for Amici Curiae

Chesapeake Bay Foundation

and Adirondack Mountain Club

Of Counsel

Jon A. Mueller

Director of Litigation

The Chesapeake Bay Foundation, Inc.

6 Herndon Ave.,

Annaoplis, MD 21462

Neil F. Woodworth

Executive Director and Counsel

Adirondack Mountain Club

814 Goggins Road

Lake George, New York 12845

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.