Amicus Curiae Brief — Environmental Defense v. Duke Energy Corporation

No. 05-848 SEP 15 2006

SUPREME COURT US |

In The

Supreme Court of the Anited States

¢

ENVIRONMENTAL DEFENSE, ET AL.,

Petitioners,

Vv.

DUKE ENERGY CORPORATION, ET AL..,

Respondents.

SJ

On Writ Of Certiorari To The United States

Court Of Appeals For The Fourth Circuit

SJ

BRIEF AMICI CURIAE OF LAW PROFESSORS

IN SUPPORT OF RESPONDENT

DUKE ENERGY CORPORATION

+

DAVID B, RIVKIN, JR.

Counsel of Record

LEE A. CASEY

BAKER & HOSTETLER LLP

Washington Square, Suite 1100

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 861-1731

————- +

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

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TABLE OF CONTENTS

Page

I iii eticticinte iictcnstenacsinestnccenis i

TABLE. OF AUTHORITING..........001..scocescssvscvsecsvscesssssees iii

INTEREST OF AMICI CURIAE ......0scccsssssesseseesessenesvee 1

SUMMARY OF ARGUMENT. ........cccccesccsessessesetsessesesvee 2

Pp RS i eR ao eee. 4

I. THE COURT OF APPEALS’ FINDING THAT

THE CLEAN AIR ACT MANDATES CONSIS-

TENT

USAGE OF THE TERM “MODIFICA-

TION” BETWEEN THE PREVENTION OF

SIGNIFICANT DETERIORATION AND NEW

SOURCE PERFORMANCE STANDARDS PRO-

GRAMS WAS A NECESSARY PART OF ITS

REGULATORY ANALYSIS.............cccecscceeeseeeeeees

A. Courts Deciding Clean Air Act § 113 Civil

Judicial Enforcement Actions Must Give

The Regulations At Issue Meaning Consis-

tent With the Clean Air Act, Regardless Of

Cearis Baar Beat F BT cccscccesccncceseecesanstecsccoes

1.

Courts Have An Independent Duty To

Ascertain The Meaning Of The Law

That Governs The Case Pending Before

NID ethasistcinnnviencapineitipeintenanedssittinititnencasatts

In Determining What The Law Is,

Courts Should Accept The Reasonable

Construction Of A Regulation That

Does Not Conflict With A Federal Stat-

Clean Air Act § 307 Does Not Alter The

Court’s Duty To Determine What The

5

10

i

TABLE OF CONTENTS -— Continued

Page

4. Construing Regulations To Avoid Con-

flicts With Statutes Ensures That

Agencies Do Not Exceed Their Dele-

I I 6 cictisienciintinnhctnbeittaaisinptnitibeiiins 19

B. The Court Of Appeals Properly Inter-

preted The EPA’s Prevention Of Signifi-

cant Deterioration Regulations Not To

Conflict With The Clean Air Act.................. 21

1. The Court Of’ peals Expressly Stated

That It Was ..ddressing The Meaning

Of The Prevention Of Significant Dete-

rioration Regulations, Not Invalidating

ices cnsiceiepinhitaleaclicicpitscieligieniiallbiaiites - 22

2. The Court Of Appeais’ Decision Does

Not Render The Prevention Of Signifi-

cant Deterioration Regulations Unen-

forceable Or Contradict The Text Of

Fa I sctrctrccninnimnacevcinevenpinnic 24

CONCLUSION .rcccoveccocosescccesrsoscscvcnscoccosenososscsecosssossovesss 28

ill

TABLE OF AUTHORITIES

Page

FEDERAL CASES

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

Pe intinkctsintinatindhtncsetaintnsensitennieietienniianindesctitnts 17, 18

Auer v. Robbins, 519 U.S. 452 (1997) ...........sccsseseesesereres 7,8

Bd. of Governors v. MCorp. Fin., Inc., 502 U.S. 32

Tee nsicelaibeissidcoshtitiaegibdcniaatinsdbiepiiiiecinbbdnlindintaepailipéitenigaiadaniodin 18

Bhada v. Comm’r, 89 T.C. 959 (1987) .......cccccccseessereeeeeeseees 11

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410

Pie ccicthcanhipisdecniiudadgusdocdhacencbibentiebdiaitideensedits 6, 7, 8, 12, 14

Carrete-Michel v. INS, 575 F. Supp. 150 (W.D. Mo.

ID tisitiicbigahiecnabintpetnndbesatinbbencncctanbaigscioncdibabebtbibiebiddsebites 11

Chevron USA, Inc. v. Natural Resources Def.

Council, 467 U.S. 837 (1963)..........cescsccccccscsccsccercseseoescoecs 7

Comm’r v. Schleier, 515 U.S. 323 (1995) ............cceeeeeceees 8,9

DRG Funding Corp. v. Sec’y of the United States

Dep't of Housing and Urban Dev., 898 F.2d 205

Seay IED MEO Dcrcsadicatensacintuehcicsndegpieedenteetninedeeuntenen 11, 12

Diamond v. Chakrabarty, 447 U.S. 303 (1980) .................. 6

Exxon Corp. v. United States, 40 Fed. Cl. 73 (1998).........- 11

Fuller Brush Co. v. United States, 262 F. Supp. 989

Sen PUD: Se stnitiiiihicindiidsidnttivihinnaidedsbbasdicimnstpivititaseibubineres 11

Hoctor v. United States Dep’t of Agric., 82 F.3d 165

SUNITA SEMIN susieibaciihiisintilindiccihdnnsiialabinitaddighsnste be sptchanvnianeutenes 20

Joy Techs. v. Sec’y of Labor, 99 F.3d 991 (10th Cir.

1996), cert. den’d, 520 U.S. 1209 (1997) ................ccceeeee 11

LaVallee Northside Civic Ass’n v. Virgin Islands

Coastal Mgmt. Comm’n, 866 F.2d 616 (3d Cir.

Sup seD civitnsncthicbiicisaditinivvicininshndcinchinipensicidiitttnicavintednatcsicniaitdgati 10

iv

TABLE OF AUTHORITIES — Continued

Page

League of Wilderness Defenders v. Forsgren, 309

rms REE Gis Ce; Fi ccctccintindececcnhstojaniitlicinns 10, 15, 16

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ........... 6

N. Natural Gas Co. v. O’Malley, 277 F.2d 128 (8th

CO, FN citierasectncictincistinitinsitiipuiaiictsaiiastiiinaiedidiaia Meliatacaitaiiiliaie 10

Nat'l Cable & Telecomms. Ass’n v. Brand X Internet

ae: ff Ee | RR ears 19

N. Haven Bd. of Educ. v. Bell, 456 U.S. 512 (1982) ...10, 11, 12

Paralyzed Veterans of Am. v. D.C. Arena L.P., 117

PRS STO (DAG: Cle, BFP cccrcccsstsiesacnsscthectianisegeninsiimaniialn 20

Shalala v. Guernsey Mem'l Hosp., 514 U.S. 87

SSID... cavccvcnnniesisninncnpeecinigdeiieiaciiaiiadinteiitpdmmmeiiabaiiandiuameiiadea 6

Steen v. Comm’r, 508 F.2d 268 (5th Cir. 1975)............ 10, 11

Stinson v. United States, 508 U.S. 36 (1993)...............000000 8

United States v. Duke Energy Corp., 278 F. Supp.

Bb SID CAETDIN.C. BOGE ncorocrcscvescsosesccncocsisssnetciatestacnvines 26

United States v. Duke Energy Corp., 411 F.3d 539

CORB s Cle BOB D cscincocnsincacintscecstsdivivinbstiieenccectaddiian 10, 22, 26

United States v. One 1973 Roll Royce By and

Through Goodman, 43 F.3d 794 (3d Cir. 1994) ...........- 18

United States v. Thompson/Center Arms Co., 504

ETB BG CR cccccccodptsciintncnindiinansdéictetecttsnintetvaadiabigaanias 18

United States v. United Mine Workers, 330 U.S. 258

CREF) cccccccnncionscietnsedsdcsensacanieindnhaibtebsibdaandieiibemmanedias 19

v

TABLE OF AUTHORITIES — Continued

Page

DOCKETED CASES

United States v. Am. Elec. Power Co., No. C2-99-

a clic aint aeceteenimnennnmentatneteniens 24

STATUTES AND REGULATIONS

acai alc crineerinainntenniennnnson 13

LE ee ee a 4

ST Ce 14, 17, 23

ERIS A ee a NN ee 9

MISCELLANEOUS

Letter from Edward E. Reich, Director of Station-

ary Source Enforcement, EPA, to Amasjit S. Gill,

Gas Turbine Div., General Electric (June 24,

Letter from Edward E. Reich, Director of Station-

ary Source Enforcement, EPA, to Charles Whit-

more, Chief of Technical Analysis, EPA Region

I SEED cdncnescecsctiscisnessenedensntbecnssesnsueceses 25

Memorandum from Edward E. Reich, Director of

Stationary Source Enforcement, EPA, to Michael

M. Johnston, Chief of Air Operations, EPA Re-

I TI anne erecta ancl a badienianoatigugebanetedsenubanten 25

John F. Manning, Constitutional Structure and

Judicial Deference to Agency Interpretations of

Agency Rules, 96 Colum. L. Rev. 612 (1996)............. 7, 20

Henry P. Monaghan, Marbury and the Administra-

tive State, 83 Colum. L. Rev. 1 (1983) ..............cccececeeeees i6

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1

INTEREST OF AMICI CURIAE'’

Amici are law professors with an interest in constitu-

tional, administrative, environmental, and general regula-

tory law issues. Each is concerned with the status and

development of the law in these areas, and believes that

the questions raised by this case are of the highest impor-

tance. Each has participated as Amici in courts of appeals

that have addressed the new source review program,

including the proceedings below and those in United

States v. Cinergy Corp., No. 06-1224 (7th Cir. 2006). Their

individual qualifications are as follows:

Jonathan Adler is Professor of Law and Co-Director,

Center for Business Law & Regulation, Case Western

Reserve University. He teaches courses in administrative,

constitutional, and environmental law, and his writing

focuses primarily on environmental and regulatory policy

issues.

John S. Baker, Jr., is the Dale E. Bennett Professor of

Law, Louisiana State University Paul M. Herbert Law

Center. He teaches constitutional law and federal courts,

and has litigated a number of federal court cases.

Dr. John C. Eastman is Professor of Law, Chapman

University School of Law, where he teaches constitutional

law. He is also Director of The Claremont Institute Center

* The parties have consented to the filing of this brief. Environ-

mental Defense and Duke Energy Corp. have filed herein letters of

consent to the filing of amicus briefs in support of either party, and the

United States’ letter of consent is filed herein in conjunction with the

brief. Pursuant to Rule 37.6, counsel hereby states that this brief was

not authored in whole or in part by counsel for a party and that no

monetary contribution to the preparation or submission of this brief

was made by any person other than Amici and their counsel.

2

for Constitutional Jurisprudence, in which capacity he has

litigated a number of cases addressing the structure of the

U.S. Constitution, including United States v. Morrison,

529 U.S. 598 (2000), Solid Waste Agency of Northern Cook

Co. v. Corps of Engineers, 531 U.S. 159 (2001), and Rancho

Viejo LLC v. Norton, 323 F. 3d 1062 (D.C. Cir. 2003).

James L. Huffman is the Erskine Wood Sr. Professor

of Law, Lewis & Clark Law School. He is former Dean,

Lewis & Clark Law School, and is former Director of the

Natural Resources Law Institute at Lewis & Clark Law

School.

Donald J. Kochan is Assistant Professor of Law,

Chapman University School of Law, where he teaches

courses in natural resources law, environmental law,

federal courts, property, and law and economics.

Roger Meiners is the John and Judy Goolsby Distin-

guished Professor of Economics and Law, University of

Texas at Arlington. He has written and edited several

books on environmental law and policy.

The views expressed herein are those of the individual

Amici, and do not necessarily represent the views of any

group or organization with which any of them may be

affiliated.

¢

SUMMARY OF ARGUMENT

The court of appeals correctly interpreted the Envi-

ronmental Protection Agency’s (“EPA”) prevention of signifi-

cant deterioration regulations’ definition of “modification”

consistent with the new source performance standards

regulations’ use of that term. Courts entertaining civil

3

judicial enforcement actions by an administrative agency

have an absolute duty to determine what the law is, and

not merely blindly accept the agency’s interpretation of the

law advanced in that enforcement action. Where the law

being applied is a regulation promulgated by an agency

exercising delegated authority, the court must follow the

reasonable interpretation of that regulation which is

consistent with the governing statute under which such

delegation was made. This duty is not affected by the

existence of provisions in the governing statute limiting

the jurisdiction of a court entertaining the enforcement

action to review prior agency action, which resulted in the

original promulgation of the underlying regulation.

The court of appeals followed these established

principles. It determined that the EPA's litigation position

in this case conflicted with the Clean Air Act. The court of

appeals also adopted the district court’s analysis demon-

strating that the prevention of significant deterioration

regulations governing this action could be interpreted

consistently with the statute and the regulatory text.

Indeed, the EPA itself interpreted the regulations in this

way at the time they were promulgated. Upon these

findings, the court of appeals correctly exercised its inde-

pendent judgment and found that the prevention of

significant deterioration regulations had a meaning

consistent with the Clean Air Act.

Petitioners’ attempts to mischaracterize the court of

appeals’ analysis of the Clean Air Act’s statutory provi-

sions as judicial review prohibited by Clean Air Act § 307

are unavailing. Petitioners argue that the court of appeals

engaged in unauthorized judicial review because the

prevention of significant deterioration regulations cannot

4

be interpreted consistently with the new source perform-

ance standards regulations. This argument misses the

point. If the prevention of significant deterioration regula-

tions cannot be interpreted consistently with the new

source performance standards regulations, the court of

appeals would have erred by incorrectly interpreting the

regulation, not by exceeding Clean Air Act § 307’s limita-

tions on its jurisdiction. The court of appeals did not so err,

however.

More fundamentally, by arguing that the court of

appeals mistakenly considered the Clean Air Act’s plain

language when adjudicating the merits of the EPA’s

litigation interpretation of its regulations, Petitioners ask

the Court to prevent lower courts throughout the country

that are currently considering alleged violations of the

prevention of significant deterioration or new source

review program from giving these regulations meaning

consistent with the Clean Air Act’s plain text. The Court

should refuse. Instead, it should reaffirm the longstanding

principle that courts in an enforcement action predicated

upon an alleged violation of a regulation must determine

the meaning of that regulation to determine whether the

law has been violated, and those courts may not give a

regulation a meaning that would conflict with the regula-

tion’s governing statute if another construction is possible.

¢

ARGUMENT

As explained in respondent Duke Energy Corp.’s brief,

the EPA’s prevention of significant deterioration regula-

tions refer to two different terms: “modification” and

“major modification.” Every legislative rule defining the

5

term “modification” has required that a physical or opera-

tional change increase the inherent emitting capacity of an

existing unit. The term “major modification” has always

been defined as a “modification” that increases “source

wide” annual emissions. The district court and court of

appeals resolved the meaning of the prevention of signifi-

cant deterioration regulations’ repeated reference to

“modification.” It is in this regulatory context that the

jurisdictional arguments about the scope and effect of

Clean Air Act § 307 must be analyzed.

I. THE COURT OF APPEALS’ FINDING THAT

THE CLEAN AIR ACT MANDATES CONSIS-

TENT USAGE OF THE TERM “MODIFICA-

TION” BETWEEN THE PREVENTION OF

SIGNIFICANT DETERIORATION AND NEW

SOURCE PERFORMANCE STANDARDS PRO-

GRAMS WAS A NECESSARY PART OF ITS

REGULATORY ANALYSIS.

A. Courts Deciding Clean Air Act § 113 Civil

Judicial Enforcement Actions Must Give

The Regulations At Issue Meaning Consis-

tent With the Clean Air Act, Regardless Of

Clean Air Act § 307(b).

Upon being presented with the civil judicial enforce-

ment action brought by the government against Duke

Energy Corp., the district court and court of appeals had

an independent duty to determine the meaning of the

regulations that the government accused Duke Energy of

violating. In so doing, the court of appeals applied the

well-established canon of regulatory construction that

regulations should be construed consistent with their

governing statutes. This analysis is unaffected by the

6

court’s duty to defer to agency interpretations that are not

“plainly erroneous or inconsistent with the regulation,” see

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414

(1945), and Clean Air Act § 307(b)’s limits on courts’ ability

to judicially review agency action.

1. Courts Have An Independent Duty To

Ascertain The Meaning Of The Law

That Governs The Case Pending Before

Them.

Courts presented with Clean Air Act civil judicial

enforcement actions must ascertain which legal principles

govern the proceedings before the fact finder (be it judge or

jury) can apply the law to the facts of the action. The

government can only impose civil liability on an individual

where that individual’s conduct violates a statute, or a

regulation that has the force and effect of law. A regulation

can only have such force if the administrative agency

promulgating the regulation exercises the authority

Congress delegated it by statute. See, eg., Shalala v.

Guernsey Mem’ Hosp., 514 U.S. 87, 99 (1995) (noting that

regulations not promulgated through proper statutory

means “do not have the force and effect of law and are not

accorded that weight in the adjudicatory process.”). Under

our judicial system, “it is emphatically the province and

duty of the judicial department to say what the law is.”

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

This applies whether the governing law is the United

States Constitution, see, e.g., id., statute, see, e.g., Dia-

mond v. Chakrabarty, 447 U.S. 303, 315 (1980), or a

regulation promulgated by an administrative agency.

This is not to say that judicial interpretive prerogative

to determine the meaning of the law is unlimited. Courts

7

must generally apply this Court’s admonition about the

need to defer to an agency’s interpretation of its regula-

tions unless the interpretation is “plainly erroneous or

inconsistent with the regulation.” Seminole Rock, 325 U.S.

at 414 (1945); see also Auer v. Robbins, 519 U.S. 452, 461

(1997). Seminole Rock deference is justified by the admin-

istrative agency’s superior competence to understand and

explain regulations, the agency’s greater political account-

ability relative to courts (which makes the agency more

appropriate than courts to make policy decisions inherent

in interpreting regulations promulgated pursuant to

delegated legislative statutory power), and the relative

competence of courts and agencies in making policy

decisions. See John F. Manning, Constitutional Structure

and Judicial Deference to Agency Interpretations of Agency

Rules, 96 Colum. L. Rev. 612, 629-30 (1996). As a manda-

tory discretion doctrine, the Seminole Rock principle

operates much like the Chevron doctrine, see Chevron

USA, Inc. v. Natural Resources Def. Council, 467 U.S. 837

(1983), preventing judges from substituting preferred

interpretations of a regulation for the agency’s interpreta-

tion.

In order for the Seminole Rock doctrine to function,

however, it is imperative that courts be given full discre-

tion to address both regulations and the statutes under

which these regulations are promulgated. Neither the

Seminole Rock doctrine nor any other relevant legal

precedent compels blind judicial acceptance of the agency’s

interpretative position. Indeed, it is clear that authority to

address the meaning of the regulation itself is necessary to

determining whether an agency’s interpretation of its rule

is consistent with the regulatory text. Moreover, this

authority must also extend to the governing statutes,

8

because courts have a duty to ensure that the agency’s

interpretation of the reguiation does not “run afoul of... a

federal statute.” Stinson v. United States, 508 U.S. 36, 46

(1993). As such, courts’ duty to address the meaning of

regulations to avoid conflict with their governing statutes

does not conflict with the Seminole Rock deference princi-

ple, it enforces it.

This Court recognized in Seminole Rock itself that

“(t]he intention of Congress . . . in some situations may be

relevant in ... choosing between various constructions.”

325 U.S. at 414. This, of course, is not the only instance

where Seminole Rock deference is unwarranted: courts

should not defer to an agency’s interpretation of its regula-

tions advanced in litigation if there is “reason to suspect

that the [agency’s] interpretation [of its regulations] does

not reflect the agency’s fair and considered judgment on

the matter in question.” Aver, 519 U.S. at 462. Often, this

is because the agency’s interpretation of its regulations

has fluctuated. See N. Haven Bd. of Educ. v. Bell, 456 U.S.

512, 539 n.29 (1982) (refusing to defer to agency’s interpre-

tation where “there is no consistent administrative inter-

pretation of the . . . regulations”).

Where the proper meaning of the regulation is before

the court and the agency’s interpretation of the regulation

is not due Seminole Rock deference, courts must inde-

pendently address the meaning of a regulation. Commis-

sioner v. Schleier, 515 U.S. 323 (1995), illustrates this

point. In Schleier, this Court addressed whether the

recipient of a settlement for back pay and liquidated

damages under the Age Discrimination in Employment Act

of 1967 musx include the settlement in his gross income.

At issue was an Internal Revenue Service (“IRS”) regula-

tion that permitted recipients to “exclude[] from gross

9

income the amount of any damages received (whether by

suit or agreement) on account of personal injuries or

sickness... . through prosecution of a legal suit or action

based upon tort or tort type rights, or through a settle-

ment agreement entered into in lieu of such prosecution.”

Id. at 333 (quoting 26 C.F.R. § 1.104-1(c) (1994)).

In the past, the IRS had interpreted the portion of this

regulation permitting exclusion of damages received

“through prosecution of a legal suit or action based upon

tort or tort-type rights” to supersede the regulatory and

statutory requirement that the damages be received “on

account of personal injuries or sickness,” although it

currently interpreted the regulations as requiring both a

legal suit for tort-type rights and that damages be received

for personal injury or sickness. See id. at 329 (quoting 26

U.S.C. § 104(aX2)), 333 (quoting 26 C.F.R. § 1.104-1(c)).

The respondent attempted to exclude back pay and liqui-

dated damages based on the prior interpretation, but this

Court disallowed the exclusion. In so doing, however, the

Court did not “accord [the Commissioner’s] present litigat-

ing position any special deference.” Jd. at 333 n.7. Instead,

it accepted the Commissioner’s position because “she reads

the regulation correctly in this case.” Jd. To determine that

the Commissioner's interpretation of her regulation was

correct, this Court ascertained the correct reading of the

regulation, free from the bounds of any deference doc-

trines.

10

2. In Determining What The Law Is,

Courts Should Accept The Reasonable

Construction Of A Regulation That Does

Not Conflict With A Federal Statute.

It is a fundamental principle of administrative law

that when courts are charged with interpreting regula-

tions, they ought to interpret the regulations to avoid

conflict with the regulation’s governing statute, provided

the regulations can be construed to avoid such a conflict.

This principle has been applied by the Supreme Court, see

N. Haven Bd. of Educ. v. Bell, 456 U.S. 512 (1982), and has

been followed as binding precedent in at least eight United

States Courts of Appeals: the Third Circuit, see LaVallee

Northside Civic Ass’n v. Virgin Islands Coastal Mgmt.

Comm'n, 866 F.2d 616, 623 (3d Cir. 1989) (“[O)ur starting

point is to attempt reconciliation of seemingly discordant

statutes and regulations. Only where that outcome is not

possible do we disregard the regulations.”), Fourth Circuit,

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

Cir. 2005), cert. granted sub nom., Environmental Def. v.

Duke Energy Corp., 126 S. Ct. 2019 (2006), Fifth Circuit,

see Steen v. Comm’r, 508 F.2d 268, 270 (5th Cir. 1975)

(reading regulation “in light of its underlying statute,” in

order “to avoid a construction which brings the validity of

the regulation into question”), Eighth Circuit, see N.

Natural Gas Co. v. O'Malley, 277 F.2d 128, 134 (8th Cir.

1960) (stating that “courts will ordinarily avoid a construc-

tion which raises doubt as to the validity of the regulation”

where the invalidity would have arisen from inconsistency

between the interpretation and statute), Ninth Circuit, see

League of Wilderness Defenders v. Forsgren, 309 F.3d 1181,

1190 n.8 (9th Cir. 2002) (rejecting agency’s “interpretation

of the regulation,” and instead giving regulation “a con-

struction consistent with its administrative history, case

11

law, and the governing statute”) (emphasis added), Tenth

Circuit, see Joy Techs. v. Sec’y of Labor, 99 F.3d 991, 996

(10th Cir. 1996), cert. den’d, 520 U.S. 1209 (1997) (“We

refuse to give effect to an interpretation of a regulation

which is not reasonable and consistent with the statute

that the regulation is meant to implement”) (internal

quotations omitted), Eleventh Circuit, see Steen, 508 F.2d

at 270, and District of Columbia Circuit, see DRG Funding

Corp. v. Sec’y of the United States Dep't of Housing and

Urban Dev., 898 F.2d 205, 209 (D.C. Cir. 1990) (accepting

plaintiff’s “alternative constructions of the regulation that

avoid conflict with [a] statutory provision”).”

This Court’s decision in North Haven Board of Educa-

tion v. Bell, 456 U.S. 512 (1982), is instructive. In North

Haven, this Court rejected a challenge to the Department

of Health, Education and Welfare’s (“HEW”) regulations

under Title IX of the Education Amendments of 1972

because they could permit HEW to terminate all federal

education funds to an institution that discriminated

against employees in one particular program on the basis

of gender. The regulations in question were susceptible to

two possible interpretations. The first would permit HEW

to terminate all federal funds to an educational institution

* The admonition that courts should construe regulations to avoid

conflicts with statutes has been applied by other United States courts

as well. See, e.g., Exxon Corp. v. United States, 40 Fed. Cl. 73, 90 (1998)

(“[I)f fairly possible, legislative regulations must be construed to avoid

conflict with a statute.”); Bhada v. Comm’r, 89 T.C. 959, 973 (1987)

(same), Carrete-Michel v. INS, 575 F. Supp. 150, 155 (W.D. Mo. 1983)

(rejecting government’s construction of regulation in order to avoid

statutory questions which would endanger the validity of the regula-

tion); Fuller Brush Co. v. United States, 262 F. Supp. 989, 999 (D. Conn.

1966) (construing tax regulation so as not to conflict with the plain

language of a statute).

12

that discriminated against women in any one of its pro-

grams. The second would construe the regulations as

program-specific. In selecting between these interpreta-

tions, the Court stated that it “normally defers to the

agency’s interpretation” of its regulations, but that “there

is no consistent administrative interpretation of the Title

IX regulations for us to evaluate” because HEW’s “inter-

pretation has fluctuated from case to case, and even as

this case has progressed.” Jd. at 539 n.29. Accordingly, this

Court interpreted “the regulations [to] conform with the

limitations Congress enacted” in the Title IX program. Jd.

at 539. North Haven conclusively determines that this

Court has blessed courts’ ability to interpret regulations

consistent with their governing statutes where the regula-

tions’ meaning is in question and the Seminole Rock

deference principle is not appropriate.

Another instructive example of the application of this

principle is DRG Funding, 898 F.2d 205. In that case, DRG

Funding owned numerous mortgages coinsured by the

Department of Housing and Urban Development (“HUD”).

When borrowers defaulted on several loans, DRG Funding

requested that HUD pay the insurance proceeds through

debentures, and that interest on the debt instruments

should accrue from the date of default. HUD refused to

pay interest from the date of default and instead stated

that it would pay interest only from the time it settled the

insurance claims. While the plain language of the regula-

tions supported DRG Funding’s argument, HUD based its

refusal to pay on two grounds. First, HUD argued that the

“provisions are inconsistent with the general thrust of the

entire body of HUD’s coinsurance regulations.” Jd. at 207.

The court rejected this argument. Second, HUD argued

that the plain language of the regulation would contravene

13

the statutory mandate that a “coinsured lender bear at

least 10% of the insured loss when a borrower defaults.”

Id. at 209 (describing 12 U.S.C. § 1715z-9(a)(1)). While the

court accepted HUD’s objection that its regulations did not

provide any mechanism for making the coinsured lender

bear 10% of the loss, the court accepted DRG Funding’s

“alternative construction|[] of the regulation that avoid[ed])

conflict with that statutory provision” and capped the

interest and principle payment at 90% of the loss. As such,

the D.C. Circuit interpreted the regulation to conform to a

statutory mandate to which the plain language of HUD’s

regulations did not conform.

3. Clean Air Act § 307 Does Not Alter The

Court’s Duty To Determine What The

Law Is.

Petitioners argue that it would frustrate the purpose

of Clean Air Act § 307(b) to permit courts to ascertain the

meaning of the EPA’s Clean Air Act regulations by refer-

ring to the Clean Air Act and the regulations, rather than

the regulatory text alone. In essence, Petitioners argue

that the policy imperatives of final’:y and national uni-

formity reflected in Clean Air Act § 307(b) should override

the court’s ability in an enforcement action to determine

what the law is and, in particular, to give regulations

meaning consistent with their governing statute. Irrespec-

tive of whether Congress could do this if it so desired,

Amici think it is clear that nothing in Clean Air Act

§ 307(b)’s plain language or legislative history suggests

that a court in which a civil judicial enforcement action is

pending lacks jurisdiction to determine the meaning of the

regulation on which violation liability is premised by

reference to the regulation’s governing statute.

14

Clean Air Act § 307(b)(2) states that “/ajction of the

Administrator with respect to which review could have

been obtained under [Clean Air Act § 307(b)(1)] shall not

be subject to judicial review in civil ... proceedings for

enforcement.” 42 U.S.C. § 7607(b)(2) (emphasis added).

According to its very terms, this statute speaks only to

“action of the Administrator” and “judicial review.” It does

not speak to the court’s existing duty to address the

meaning of regulations before it.

Petitioners’ argument proves too much. If the EPA’s

reading of its prevention of significant deterioration

regulations were reasonable and consistent with the Clean

Air Act, this Court would defer because it determined that

the Seminole Rock deference principle applied, not because

Clean Air Act § 307 prevented it from determining the

meaning of the regulations. It follows that in the instant

case, where the Seminole Rock deference principle does

not apply because the EPA’s litigation interpretation is not

consistent with the Clean Air Act (and because the

Agency’s interpretation of its regulations has vacillated),

Clean Air Act § 307 likewise does not prevent the court

from determining the meaning of the regulations. Simply

put, courts entertaining enforcement actions must deter-

mine whether the alleged actions occurred, what the

regulations allow or prohibit, and whether the alleged

actions violate the regulations. All that is at issue in the

instant action is the second step — the court’s determina-

tion of what the regulations mean. In so doing, the court of

appeals made this determination by reference to the Clean

Air Act’s statutory language.

At least one other court of appeals has given regula-

tions meaning consistent with their governing statutes

despite the existence of constraints on judicial review

15

analogous to Clean Air Act § 307(b). In League of Wilder-

ness Defenders v. Forsgren, 309 F.3d 1181 (9th Cir. 2002),

the Ninth Circuit interpreted the EPA’s regulations

promulgated under the Federal Water Pollution Control

Act dictating what are and are not point sources of water

pollution to include aerial insecticide spraying as a point

source of pollution. This interpretation required that the

Forest Service obtain a permit to spray, and contradicted

the Forest Service’s interpretation of the regulations,

which was based on its consultation with the EPA. In

refusing to defer to the EPA’s interpretation of its point

source regulations, the court accepted the League of

Wilderness Defenders’ argument that the interpretation

was impermissible and stated that the EPA “has some

power to define point source and nonpoint source pollution

where there is room for reasonable interpretation of the

statutory definition. However, the EPA may not exempt

from [|] permit requirements that which clearly meets the

statutory definition of a point source by ‘defining’ it as a

non-point source.” Jd. at 1190 (emphasis in original).’

In opposition, the Forest Service claimed that the

court’s interpretation of the point source regulation was

prohibited by Federal Water Pollution Control Act § 509,

which is identical in all relevant respects to Clean Air Act

§ 307. The Ninth Circuit rejected this argument, stating

that “we do not reach the Forest Service’s arguments

regarding [Federal Water Pollution Control Act § 509(b)]

* While League of Wilderness Defenders was a suit between several

environmental groups and the Forest Service Department, in relevant

part, the Ninth Circuit treated “the two letters and guidance document

fon which the Forest Service Department relied] as definitive pro-

nouncements of the EPA.” 30 F.3d at 1190.

16

because we do not invalidate the regulation. Rather, we

reject the Forest Service’s interpretation of the regulation

and give it a construction consistent with its administra-

tive history, case law, and the governing statute.” Id. at

1190 n.8 (emphasis added). Put another way, the fact that

a challenge to the validity of the regulation itself might

have been time-barred did not matter because the court

was merely discharging its duty to determine the law, not

challenging the regulation itself.

League of Wilderness Defenders demonstrates that the

canon that courts should give regulations meaning consis-

tent with their governing statutes applies equally to

regulations that may not be judicially reviewed because of

a statutory bar. Thus, contrary to Petitioners’ claims,

accepting a construction of the prevention of significant

deterioration regulations consistent with the Clean Air

Act’s plain text is not a means of avoiding Clean Air Act

§ 307’s limitation on the court of appeals’ jurisdiction; it is

the proper judicial course of conduct whenever an agency

attempts to enforce its interpretation of a regulation

against a regulated entity in a judicial proceeding.

Indeed, “judicial review,” as that term is used in Clean

Air Act § 307, refers to a court’s ability to overturn particu-

lar “action of the Administrator,” not its ability to address

the meaning of regulations in enforcement actions. This is

why the courts, in considering other cases involving Clean

Air Act § 307(b), refer to review not as a declaratory

function, see Henry P. Monaghan, Marbury and the Ad-

ministrative State, 83 Colum. L. Rev. 1, 5-8 (1983) (describ-

ing the court’s role to determine the meaning of the law as

a declaratory function), but as a means of determining

whether agency action, like legislative rules, are valid. A

court exercising the declaratory function does not decide

17

whether the regulations underlying the action are valid

the way that a United States Court of Appeals deciding a

petition for review would. See 42 U.S.C. § 7607(dx8)

(enumerating the grounds on which courts “may reverse”

action of the Administration “in the case of review”). That

is, a court determining the meaning of the law governing

an enforcement action does not engage in the type of

review generally associated with the D.C. Circuit — assess-

ing the facial validity of the regulation under its governing

statute, determining whether the agency’s policy choices

are reasonable, and determining whether the agency’s

action is arbitrary or capricious. Instead, it determines the

meaning of the regulation without exercising any of these

judicial tools.

This distinction is supported by case law governing

Clean Air Act § 307, which demonstrates that courts

deciding a Clean Air Act enforcement action may deter-

mine the meaning of the regulations before them, even if

they lack the ability to provide the type of relief associated

with judicial review. In Adamo Wrecking Corp. v. United

States, 434 U.S. 275 (1978), for example, this Court con-

sidered whether an earlier version of Clean Air Act

§ 307(b) precluded a defendant in a criminal judicial

enforcement action from arguing in its defense that the

emission standard for asbestos it allegedly violated was

not an emission standard under the plain language of the

Clean Air Act. This Court held that the defendant could

assert this defense because Clean Air Act § 307 “does not

relieve the Government of the duty of proving, in a prose-

cution under [Clean Air Act] § 113(cX1)(C), that the regu-

lation allegedly violated is an emission standard.” Jd. at

284. In other words, this Court held that Clean Air Act

§ 307’s bar on judicial review does not preclude defendants

18

in criminal civil judicial enforcement actions from contest-

ing the government’s allegations about the meaning of the

regulation. )

To be sure, this Court’s decision in the Adamo Wreck-

ing case arose in a criminal prosecution. However, courts’

ability to determine the law in a civil judicial enforcement

action, with substantial civil penalties being sought — in

this case in the billions of dollars — should be no more

limited. The rule of lenity applied by the Adamo Wrecking

court in interpreting Clean Air Act § 307(b)(2) applies

equally to the punitive criminal and civil aspects of Clean

Air Act § 113(c), the statute that forms the basis both for

the criminal judicial enforcement action in Adamo Wreck-

ing and the civil judicial enforcement action before the

Court today. See United States v. Thompson/Center Arms

Co., 504 U.S. 505, 525 (1992) (Stevens, J., dissenting)

(“The main function of the rule of lenity is to protect

citizens from the unfair application of ambiguous punitive

statutes.”) (emphasis added); United States v. One 1973

Roll Royce By and Through Goodman, 43 F.3d 794, 801 (3d

Cir. 1994) (applying rule of lenity to civil statute that is

“punitive in nature”).

Even if the rule of lenity does not apply in the instant

case, a parallel canon of construction — that Congress must

demonstrate “clear and convincing evidence of legislative

intent” to restrict the right of an aggrieved person to have

a court determine the law before the traditional exercise of

that judicial function would be precluded — would still

apply. £.g., Bd. of Governors v. MCorp. Fin., Inc., 502 U.S.

32, 44 (1991). Applying either canon in this situation leads

to the same conclusion this Court reached in the Adamo

Wrecking decision: that the district court and court of

19

appeals had jurisdiction to determine the meaning of the

prevention of significant deterioration regulations.*

4. Construing Regulations To Avoid Con-

flicts With Statutes Ensures That Agen-

cies Do Not Exceed Their Delegated

Powers.

In addition to being fully supported by this Court’s

jurisprudence, construing regulations to avoid conflict

with their governing statutes is compelling regulatory

policy. Courts ensure that an administrative agency’s

delegated power stays within its proper statutory bounds

when they give the regulations at issue in an action

meaning consistent with their governing statute. The

general principle underlying deference to administrative

agencies is that “ambiguities in statutes within an

agency's jurisdiction to administer are delegations of

authority to the agency to fill the statutory gap in reason-

able fashion.” Natl Cable & Telecomms. Ass’n v. Brand X

Internet Servs., 125 S. Ct. 2688, 2699 (2005). A legislative

rule may be susceptible to multiple interpretations, not all

of which are consistent with the governing statute. As long

* This conclusion comports with the principle that Article III courts

have jurisdiction to determine their jurisdiction. See, e.g., United States

v. United Mine Workers, 330 U.S. 258, 291 (1947). A district court

entertaining a civil judicial enforcement action would lack jurisdiction

to determine whether a legal argument raised by the defendant in a

civil judicial enforcement action were a permissible alternative

interpretation of the regulation, or a prohibited attack on the regulation

itself, if the court could not itself determine the meaning of the rule. In

other words, if the court of appeals were precluded from determining

the meaning of the regulation, it could not determine that it lacked

jurisdiction. This result underscores Petitioners’ fundamental misread-

ing of Clean Air Act § 307.

20

as the administrative agency’s actions under the regula-

tion are consistent with the statute, it does not exceed its

statutory delegation. However, when the administrative

agency brings an action under the regulation that exceeds

the agency’s statutory authority, this principle allows

courts to ensure that the agency’s action proceeds under

the terms of the delegation, while still giving effect to the

critical policy decisions that the agency made when it

promulgated the regulation itself.

Moreover, courts create disincentives for agencies to

change legislative rules without undergoing notice and

comment rulemaking procedures by determining the

meaning of regulations at issue consistently with the

governing statutes. As a practical matter, agencies often-

times attempt to advance interpretations or reinterpreta-

tions of legislative rules that are the functional equivalent

of a new rule. See, e.g., Paralyzed Veterans of Am. v. D.C.

Arena L.P., 117 F.3d 579, 586 (D.C. Cir. 1997); Hoctor v.

United States Dep’t of Agric., 82 F.3d 165, 169-70 (7th Cir.

1996). When courts determine the meaning of the law

governing an action, however, it becomes less likely that

regulated entities will be subject to these aberrant inter-

pretations or reinterpretations.

Finally, according unexamined deference to agencies’

interpretations of their regulations is antithetical to our

constitutional structure, undermining the legitimacy of

the administrative state. Cf John F. Manning, Constitu-

tional Structure and Judicial Deference to Agency Interpre-

tations of Agency Rules, 96 Colum. L. Rev. 612, 631 (1996)

(“[Plermitting agencies both to write regulations and to

construe them authoritatively ... effectively unifies law-

making and law-exposition — a combination of powers

decisively rejected by our constitutional structure.”). This is

21

doubly the case when the agency’s interpretation of its

regulations is not merely a strained reading of the regula-

tory text, but is inconsistent with the governing statute.

This Court should not lightly displace the court’s funda-

mental role — declaring the meaning of the law in cases

before it. Instead, it should reaffirm the long-standing

principle that courts should interpret regulations consis-

tent with their governing statutes. -

B. The Court Of Appeals Properly Interpreted

The EPA’s Prevention Of Significant Dete-

rioration Regulations Not To Conflict With

The Clean Air Act.

The gravamen of Petitioners’ arguments is that by

holding the EPA’s litigation interpretation of its prevention

of significant deterioration rules up to the Clean Air Act’s

plain language, the court of appeals’ reasoning amounted

to an impermissible attack on those regulations. However,

the court of appeals simply accepted the EPA’s contempo-

raneous construction of the prevention of significant

deterioration regulations because it is consistent with the

Clean Air Act’s plain language and the regulations them-

selves. As such, the court of appeals’ analysis fits squarely

into the proper role of a court adjudicating a civil judicial

enforcement action. The fact that applying this law to the

projects at issue herein did not lead the court of appeals or

district court to find a violation of the prevention of sig-

nificant deterioration program says nothing about the

court of appeals reasoning, only about the weakness of the

government’s case.

22

1. The Court Of Appeals Expressly Stated

That It Was Addressing The Meaning Of

The Prevention Of Significant Deterio-

ration Regulations, Not Invalidating

Them.

The court of appeals decision indicates that it under-

stood its role in this case ~ to determine the meaning of

the EPA’s prevention of significant deterioration regula-

tions in light of the Clean Air Act and the regulatory text.

The court of appeals directly stated the question it was

answering, which was the precise question raised by the

EPA in its brief: “whether [the EPA] ‘can interpret the

statutory term modification under PSD differently from

how’ it has interpreted that term under NSPS.” United

States v. Duke Energy Corp., 411 F.3d 539, 549 n.7 (4th

Cir. 2005). Here, the court of appeals’ answer was an

unambiguous no, “because Congress mandated that the

PSD definition of ‘modification’ be identical to the NSPS

definition of ‘modification.’” Jd. at 547. Having determined

the meaning of the Clean Air Act, the court of appeals was

thus presented with a second question: whether the

prevention of significant deterioration regulations could be

interpreted consistently with the new source performance

standards regulations. The court of appeals answered this

question in the affirmative, stating that “the PSD regula-

tions can be interpreted consistently with pre-existing

principles — the NSPS regulations — as the district court

demonstrated and as the EPA’s Director of the Division of

Stationary Source Enforcement twice opined shortly after

the promulgation of the PSD regulations.” Id. at 549 n.7

(emphasis added). °

23

After answering this question by reference to the

district court’s opinion and the EPA’s applicability deter-

minations, the court of appeals did not need to spend

voluminous pages hashing out whether the EPA’s contem-

poraneous interpretation, adopted by the district court in a

lengthy and rigorous opinion, was closer to the text of the

prevention of significant deterioration regulations than

the EPA’s litigation interpretation.* See id. at 545-46

(describing district court’s regulatory analysis). It is in this

sense that “the language and various interpretations of

the PSD regulations, on which the district court partially

based its holding and which the parties exhaustively

discuss, are largely irrelevant to the proper analysis of

this case.” Jd. at 547 n.3. That is, in light of the statutory

mandate, plausibility is enough; there was no need to

engage in a pedantic exposition of each provision of the

lengthy prevention of significant deterioration regulations.

Contrary to Petitioners’ assertions, the court of ap-

peals simply did not review the validity of prevention of

significant deterioration regulations, the “judicial review”

precluded by Clean Air Act § 307. And the court of appeals

properly recognized that it could not do so, stating that “no

question as to the validity of the PSD regulations is (or

could be, see 42 U.S.C. § 7607(b)), presented here” and that

the “PSD regulations remain fully intact and enforceable.”

Id. at 549 n.7. Instead, the court of appeals merely fulfilled

its responsibility to say what the law governing this

* This analysis does not mean that Amici believe that Duke Energy

Corp.’s regulatory interpretation is further from the text of the preven-

tion of significant deterioration regulations than the government's

interpretation.

24

enforcement action is, accepting the EPA’s contemporane-

ous interpretation because it was consistent with the

Clean Air Act and the Petitioners’ and the EPA’s litigation

interpretations were not.

2. The Court Of Appeals’ Decision Does

Not Render The Prevention Of Signifi-

cant Deterioration Regulations Unen-

forceable Or Contradict The Text Of The

Regulations.

Petitioners alternately argue that the court of appeals’

decisio:. violated Clean Air Act § 307 because: (1) the

prevention of significant deterioration regulations are now

unenforceable, or (2) the prevention of significant deterio-

ration regulations are not susceptible to a construction

consistent with the statute. Neither contention is merito-

rious.

The. argument that the prevention of significant

deterioration regulations in effect at the time of the

activities at issue in the instant case are unenforceable

can be disposed of simply by comparing the case herein

with the pending enforcement action against the American

Electric Power Company, see United States v. Am. Elec.

Power Co., No. C2-99-1182 (S.D. Ohio) (stayed pursuant to

Order of May 22, 2006 pending the disposition of the

instant case). There, the government argues that certain

activities “constituted modifications and thus required

NSR permits.” See Plaintiff’s Proposed Conclusions of

Law 7 249, Am. Elec. Power Co. (S.D. Ohio Sept. 1, 2005).

That is, these projects required preconstruction permits

even though “the modification definition was to be con-

strued consistently with the existing NSPS rules, which

defined emission rate in kilograms per hour.” Jd. { 251. It

(25

is clear that, under the court of appeals’ decision, Duke

Energy (or any other utility in the footprint of the Fourth

Circuit) would be liable under the prevention of significant

deterioration regulations if it conducted activity equiva-

lent to the activity that the government alleges American

Electric Power conducted. The fact that the prevention of

significant deterioration regulations would not reach all of

the conduct the government wishes them to reach does not

render them unenforceable; it only prevents a legally

unsupportable application of these regulations.

Petitioners’ argument that the prevention of signifi-

cant deterioration regulations cannot be read consistently

with the new source performance standards regulations

rests on similarly flimsy grounds. See, e.g., Brief of the

United States at 19-20. The government itself has inter-

preted the “major modification” definition in its prevention

of significant deterioration regulations in three distinct

ways. The first way is embodied in applicability determi-

nations issued in the regulations’ immediate aftermath.

See Letter from Edward E. Reich, Director of Stationary

Source Enforcement, EPA, to Amasjit S. Gill, Gas Turbine

Div., General Electric, at 1 (June 24, 1981) (stating that

“PSD applicability [at a source that had begun normal

operations] is determined by evaluating any change in the

emissions rates caused by” the change); Letter from

Edward E. Reich, Director of Stationary Source Enforce-

ment, EPA, to Charles Whitmore, Chief of Technical

Analysis, EPA Region VII (January 22, 1982) (stating that

an operational change that increases the number of hours

that a source can operate in a year does not constitute a

“major modification” under the prevention of significant

deterioration regulations); Memorandum from Edward E.

Reich, Director of Stationary Source Enforcement, EPA, to

26

Michael M. Johnston, Chief of Air Operations, EPA Region

X, at 3 (July 28, 1983) (stating that “any increase in actual

emissions [following a physical change] ... which will

result from the increased capacity provided by the larger

[component] must be considered for the purposes of PSD

applicability”). The court of appeals expressly selected this

contemporaneous interpretation. See Duke Energy, 411

F.3d at 547.

Later, the government interpreted the prevention of

significant deterioration regulations’ definition of “major

modification” to contain an “actual-to-potential” test for

existing sources that have begun normal operations and

have not undertaken projects that constituted “modifica-

tions” under the new source performance standards

program. See Wis. Elec. Power Co. v. Reilly, 893 F.2d 901

(7th Cir. 1989). The government advanced this interpreta-

tion of its prevention of significant deterioration regula-

tions in the proceedings below. See United States v. Duke

Energy Corp., 278 F.Supp. 2d 619, 640 n.17 (M.D.N.C.

2003) (“The EPA in its briefing argued that .. . the “actual-

to-potential” test should apply to Duke Energy’s units

[that were not NSPS “modifications”].... During the

summary judgment hearing on July 18, 2003, the EPA

indicated that it would not seek application of the actual-

to-potential test... .”). Finally, the government adopted

the “actual-to-projected-actual” test for existing sources

that have begun normal operations and have not under-

taken projects that constituted “modifications” for the new

source performance standards program. It is this interpre-

tation that the government now disingenuously claims, in

the face of egregious agency vacillations including in the

proceedings below, as the only “reasonable” reading of its

prevention of significant deterioration regulations. See

27

Brief of the United States at 20 (“The only reasonable

reading of the PSD regulations is that a physical change

that increases a source’s hours of operation is a ‘modifica-

tion.’”).

This Court should reaffirm the longstanding principle

that courts should not give meaning to a regulation that

would conflict with the regulation’s governing statute. The

Fourth Circuit’s decision lacks neither reason nor prece-

dent in this regard. Indeed, it is solidly rooted in both.

Reading the prevention of significant deterioration regula-

tions consistent with the plain language of the Clean Air

Act Amendments of 1977, which mandates that the EPA

interpret “modification” consistently in the prevention of

significant deterioration and new source performance

standards programs, the court of appeals adopted the only

reasonable interpretation of the regulations: the interpre-

tation advanced by Duke Energy Corp. and by the EPA

immediately following the prevention of significant dete-

rioration regulations’ promulgation. To the extent this is

error, and Amici strenuously contend it is not, it is error on

the merits of the dispute, not because the court’s decision

regarding the meaning of the regulation constitutes

judicial review prohibited by Clean Air Act § 307.

s

28

CONCLUSION

For the foregoing reasons, as well as the reasons set

forth by Duke Energy Corp. and its Amici, the judgment of

the court of appeals should be affirmed.

Respectfully submitted,

DAVID B. RIVKIN, JR.

Counsel of Record

LEE A. CASEY

BAKER & HOSTETLER LLP

Washington Square, Suite 1100

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 861-1731