# Amicus Curiae Brief — Environmental Defense v. Duke Energy Corporation

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0237%3A39

## Record

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

## Text

In 1980, EPA issued regulations providing guidance to
States on how to structure PSD programs in their State
Implementation Plans (“SIPs”). 45 Fed. Reg. 52676 (Aug. 7,
1980). (EPA recodified these regulations into 40 C.F.R.
§ 51.166 in 1987). The states of North Carolina and South
Carolina incorporated these federal regulations into their SIPs
in 1982. See 47 Fed. Reg. 7836, 7837 (Feb. 23, 1982) (North
Carolina) and 47 Fed. Reg. 6017 (Feb. 10, 1982) (South
Carolina). Thus it is the language of 40 C.F.R. § 51.166 that
must be the focus in this case. ;

The regulations define “major modification,” subject to key
exceptions discussed below, as:

[A]ny physical change in or change in the method of

operation of a major stationary source that would result in

a significant net emissions increase of any pollutant

subject to regulation under the Act.

40 C.F.R § 51.166(b)(2)(1) (emphasis added). Pet. App. 103a.

“Net emissions increase” is defined as follows:

[T]he amount by which the sum of the following exceeds

zero: (a) [a]ny increase in actual emissions from a

particular physical change or change in the method of

operation at a stationary source; and (b) [a)ny other
increases and decreases in actual emissions at the source
that are contemporaneous with the particular change and
are otherwise creditable.

40 C.F.R § 51.166(b)(3)(i)(emphasis added). Pet. App. 104a.

The key analysis under this definition is whether the
particular “change” will lead to an increase in “actual
emissions.” This term “actual emissions” has a lengthy
definition:

(i) “Actual emissions” means the actual rate of emissions

of a pollutant from an emissions unit, as determined in

accordance with paragraphs (b)(21)(ii)- (b)(21)(iv) of this
section.

(ii) In general, actual emissions as of a particular date shall

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equal the average rate, in tons per year, at which the unit

actually emitted the pollutant during a two-year period

which precedes the particular date and which is
representative of normal source operation. The reviewing
authority may allow the use of a different time period upon

a determination that it is more representative of normal

source operation. Actual emissions shall be calculated

using the unit’s actual operating hours, production rates,
and types of materials processed, stored, or combusted
during the selected time period.

(iii) The reviewing authority may presume that

source-specific allowable emissions for the unit are

equivalent to the actual emissions of the unit.

(iv) For any emissions unit which has not begun normal

operations on the particular date, actual emissions shall

equal the potential to emit of the unit on that date.
40 C.F.R § 51.166(b)(21) (emphasis added).

Given this language, to determine whether an increase in
“actual emissions” will occur, one generally looks to the
facility’s annual emissions for the two years preceding the
project, 40 C.F.R § 51.166(b)(21)(ii), and compares them to the
facility’s emissions after the project. This analysis, of course,
must occur before a project is undertaken, and so EPA, in
promulgating the regulation, had to develop some methodology
for estimating what actual emissions would be after the project
was completed. EPA chose to define “actual emissions” for a
facility that had not begun “normal operations” to be the
facility’s “potential to emit” after the project. 40 C.F.R

* The regulations define “potential to emit” as: “the maximum capacity
of a stationary source to emit a pollutant under its physical and operational
design. Any physical or operational limitation on the Capacity of the source
to emit a pollutant, including air pollution contro! equipment and restrictions
on hours of operation or on the type or amount of material combusted,
stored, or processed, shall be treated as part of its design if the limitation or

6

§ 51.166(b)(21)(iv).

This test is commonly known as the “actual to potential”
test, Pet. App. 57a, and it sweeps many sources into the PSD
program because of its inherent assumption that sources, after
making a modification, will operate “24 hours per day, 365
days per year.” Wisconsin Electric Power Co. v. Reilly, 893
F.2d 901, 916 (7" Cir. 1990) (“WEPCO”). The Seventh
Circuit, however, rejected the application of this test to existing
power plant sources, holding that if a power plant is engaged in
a “like-kind replacement,” then EPA cannot properly say that
the source making the modification has not commenced normal
operations. /d. (interpreting 40 C.F.R § 51.166(b)(21)(iv)).

After the Seventh Circuit’s 1990 ruling, EPA created a
special emissions increase test exclusively for power plants that
allows a plant owner to determine whether emission increases
will occur by comparing actual emissions prior to the change
with its projection of what annual emissions will be after the
change, but only if it reports to EPA on its post-project
emissions. 57 Fed. Reg. 32314, 32335 (July 21, 1992)(adding
40 C.F.R § 51.166(b)(21)(v)). This 1992 regulation has no
application in this case, however, because at the time most of
the projects occurred, the rule change was not incorporated into
the North Carolina and South Carolina SIPs. Furthermore,
Duke Energy never reported on its post-project emissions, so it
could not benefit from the rule’s provisions in any event.

Whether the Seventh Circuit in WEPCO was correct
regarding the proper methodology for determining post-project
“actual emissions” is, for the purposes of this case, irrelevant.‘

the effect it would have on emissions is federally enforceable. Secondary
emissions do not count in determining the potential to emit of a stationary
source.” 40 C.F.R § 51.166(b)(4).

“EPA was prepared to proceed in the case using the actual-to-future-
actual test. Pet. App. 58a, n. 17.

While both the “actual-to-potential” and WEPCO
methodologies are grounded in the language of the regulations
themselves, that regulatory language simply does not support an
interpretation yielding an hourly emissions test. See 40 C.F.R
§ 51.166(b)(21)(ii) (“[A]ctual emissions . . . shall equal the
average rate, in fons per year, at which the unit actually emitted
the pollutant... .”).

Although the Fourth Circuit, as mentioned above, never
discussed the actual language of the regulations, the district
court did, finding that an exception contained within the
definition of “major modification,” 40 C.F.R §
51.166(b)(2)(iii)(f), (the “increased hours” exclusion) imposes,
despite the language set forth above, the hourly emissions test.
Pet. App. 72a. The language focused upon by the district court
is as follows:

(2)(i)”"Major modification” means any physical change in

or change in the method of operation of a major stationary

source that would result in a significant net emissions
increase of any pollutant subject to regulation under the

Act.

(ii) Any net emissions increase that is significant for

volatile organic compounds shall be considered significant

for ozone.

(iii) A physical change or change in the method of

operation shall not include:

(a) Routine maintenance, repair, and replacement;

(b) Use of an alternative fuel or raw material by reason
of any order under sections 2 (a) and (b) of the Energy
Supply and Environmental Coordination Act of 1974
(or any superseding legislation) or by reason of a
natural gas curtailment plan pursuant to the Federal
Power Act;

(c) Use of an alternative fuel by reason of an order or
rule under section 125 of the Act;

(d) Use of an alternative fuel at a steam generating unit
to the extent that the fuel is generated from municipal
solid waste;

(e) Use of an alternative fuel or raw material by a
stationary source... ;

(f) An increase in the hours of operation or in the
production rate, unless such change would be
prohibited under any federally enforceable permit
condition which was established after January 6, 1975,
pursuant to 40 CFR 52.21 or under regulations
approved pursuant to 40 CFR Subpart I or 40 CFR
51.166. :

40 C.F.R § 51.166(b)(2)(emphasis added). The district court
ruled that the “increased hours” exclusion required “that in
calculating post-project emissions, the EPA must hold the
pre-project and post-project hours and conditions of operation
constant.” Pet. App. 72a.

The district court’s analysis was incorrect. As mentioned
above, the “modification” test has two elements. First, a source
must determine whether a physical or operational change will
occur. 40 C.F.R. 51.166(b)(2)(i). Second, ifso, the source must
determine whether that change will result in a significant net
emissions increase. Jd. By its explicit terms, the “increased
hours” exclusion applies at the first step of the analysis, not the
second step. Furthermore, the definition of “net emissions
increase,” 40 C.F.R. § 51.166(b)(3){i), analyzes whether “a
particular physical change or change in the method of
operation” at a source has increased emissions. A project that
falls within the “increased hours” exclusion could never qualify
as the type of “change” that subsection (b)(3)(i) addresses. To
put it another way, if the “increased hours exclusion” applies to
a project, it would be unnecessary to go on and conduct the
“emissions increase” analysis because the activity in question

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would have already been found exempt.

Thus the plain language of the regulations does not support
a conclusion that the “increased hours” exclusion affects the
calculation of a “net emissions increase.” As the court said in
United States v. Cinergy Corp., 384 F. Supp. 2d 1272, 1278
(S.D. Ind. 2005) (appeal pending): “the plain meaning of the
increased hours exclusion is that an increase in hours or
production rate are not a ‘physical change’ and thus cannot,
alone, be a modification. Increased hours and production rate
are not excluded from the definition of ‘modification’; that is,
if a physical change results in an increase in hours of operation
that causes a net emissions increase, a modification has
occurred.”

Accordingly, what the Fourth Circuit should have done in
this case is determine, by carefully reading the regulations,
whether the district court’s interpretation of the regulations was
correct. Instead, the Fourth Circuit failed to “interpret” the
regulations at all. Instead, it examined whether the regulations
comported with its view of what the statute required, and that
type of review was reserved by Congress for the D.C. Circuit,
which upheld the regulations in New York v. Environmental
Protection Agency, 413 F.3d 3. 18-20 (D.C. Cir. 2005).

* Indeed, if the hours-of-operation exclusion were interpreted to
include increases in hours of operation that resulted from actual physical
modifications, it would lead to the following anomalous result: if a project
made physical changes to a source that increased the source’s capacity to
produce in any particular hour, but did not increase the source’s availability
to operate more hours, then that project would trigger PSD, but if the project
increased both capacity and availability, it would not.

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C. ALLOWING A COLLATERAL ATTACK OF AN
ENVIRONMENTAL REGULATION IN THE
CONTEXT OF AN ENFORCEMENT ACTION
WOULD UNDERMINE THE ENFORCEMENT
SCHEME OF MANY ENVIRONMENTAL
STATUTES

Allowing the type of collateral attack on the regulations
that occurred in this case would not only undermine the Clean
Air Act’s enforcement scheme, but also similar restrictions on
judicial review established by Congress in many other
environmental statutes. Examples abound:

* (Clean Air Act. 42 U.S.C. § 7607(b)(1) provides in
pertinent part (emphasis added) that:
A petition for review of action of the Administrator in
promulgating any national primary or secondary
ambient air quality standard, any emission standard or
requirement under section 7412 of this title, any
standard of performance or requirement under section
7411 of this title, any standard under section 7521 of
this title (other than a standard required to be
prescribed under section 7521(b)(1) of this title), any
determination under section 7521(b)(5) of this title,
any control or prohibition under section 7545 of this
title, any standard under section 7571 of this title, any
rule issued under section 7413, 7419, or under section
7420 of this title, or any other nationally applicable
regulations promulgated, or final action taken, by the
Administrator under this chapter may be filed only in

the United States Court of Appeals for the District of
Columbia. ...

ll

42 U.S.C. § 7607(b)(2) provides in pertinent part that:
Action of the Administrator with respect to which
review could have been obtained under paragraph (1)
shall not be subject to judicial review in civil or
criminal proceedings for enforcement. . . .

Applying these provisions, the Fifth Circuit, in the context

of acriminal proceeding for violations of asbestos removal

work practice standards, refused to entertain an argument
that the regulation was invalid. See United States v. Ho,

311 F.3d 589, 607 (5" Cir. 2002), cert. denied 539 U.S.

914, 123 S. Ct. 2274 (2003). See also Getty Oil Co.

(Eastern Operations), Inc. v. Ruckelshaus, 467 F.2d 349,

359 (3d Cir. 1972), cert. denied, 409 U.S. 1125 (1973)

(“Failure to utilize the section 307 proceeding forecloses

review in acivil or criminal proceeding for enforcement.”);

Commonwealth of Virginia v. United States, 74 F.3d 517,

525 (4" Cir. 1996)(“Because Congress wanted prompt and

- conclusive review in air quality controversies, it channeled

(to the courts of appeals) all challenges, regardless of their

basis, of EPA rules and final actions.”); Madison Gas &

Electric v. U.S. E.P.A., 4 F.3d 529 (7 Cir. 1993)

(Challenge to national feature of acid rain program, such as

tradability of emission allowances, may be brought only in

Court of Appeals for the District of Columbia Circuit, even

if impact of program varied greatly across the country).

Clean Water Act. 33 U.S.C. § 1369(b)(2); see Longview
Fibre Co. v. Rasmussen, 980 F.2d 1307, 1313 (9 Cir.
1992)(“Reviewability under section 1369 carries a peculiar
sting. ... If an EPA action is reviewable under section
1369(b)(1), then it “shall not be subject to judicial review
in any civil or criminal proceeding for enforcement.” 33
U.S.C. § 1369(b)(2).”); see also American Paper Inst.,
Inc. v. EPA, 882 F.2d 287, 288-89 (7" Cir. 1989)(“the
Clean Water Act bars review in enforcement proceedings

12

of actions that could have been reviewed earlier”); Natural
Resources Defense Council, Inc. v. Outboard Marine
Corp. 702 F. Supp. 690, 693 (N.D. Ill. 1988)(“Section
1369(b)(1)(F) permits review of an EPA action issuing or
denying a permit only in the Circuit Court of Appeals.
Section 1369(b)(2) then expressly bars review of an
EPA-issued or EPA-denied permit in any District Court
enforcement proceeding.”’);

Comprehensive Environmental Response, Compensation,
and Liability Act (“CERCLA”), 42 U.S.C. § 9613(a); see
U.S. Ecology, Inc. v. Carlson, 638 F. Supp. 513, 518-19
(C.D. Ill. 1986)(challenge to a listing on the National
Priorities List can only be brought in the D.C. Circuit);

Toxic Substances Control Act (“TSCA”), 15 U.S.C. §
2618(a); see Dow Chemical Co. v. Costle, 484 F. Supp.
101, 104 (D. Del. 1980)(court ruled it had no jurisdiction
because, although chemical company claimed it was
challenging interpretation and application of regulation
imposing a ban on manufacture, it was in fact challenging
validity of regulation itself);

Resource Conservation and Recovery Act (“RCRA”), 42
U.S.C. § 6976(a)(2);

Safe Drinking Water Act, 42 U.S.C. § 300}-7(a).

In statute after statute, Congress has consistently

established a sensible system for judicial review. Challenges to
regulations must be brought in the D.C. Circuit, and usually
within 60 days of promulgation. Enforcement actions are not
to be hindered by such challenges. The Fourth Circuit’s

decision upsets this carefully crafted system for the
administration of justice.

13

D. THE OUTCOME IN THIS CASE COULD HAVE
BROAD IMPLICATIONS ON THE AIR QUALITY
IN THE NATION’S NATIONAL PARKS

This case and others filed by the Department of Justice and
citizens seek to bring into compliance sources that have
attempted to evade New Source Review requirements on a
massive scale. According to the Greenwire News Service, in
addition to this case, there are nine cases pending around the
country covering 39 coal-fired power plants. In addition,
government action has led to clean-ups of 25 other such plants.°

Overail, according to the Energy Information
Administration, this year, roughly fifty percent of the electricity
generated in the United States was from coal.’ Over 65% of
sulfur dioxide (“SO,”) released to the air, or more than 13
million tons per year, comes from electric utilities, especially
those that burn coal.* Another 18% comes from non-utility,
coal burning industries. /d. Similarly, utilities are responsible
for 22% of the nation’s nitrogen oxide (“NO,”) emissions,’ and
coal-fired power plants emit into the atmosphere over 50 tons

* “Enforcement Chart - New Source Review, An E&E Publishing
Special Report.”Available at: //

Special _reports/nsr/enforcement_chart.php (last visited July 16, 2006).

” U.S. Energy Information Administration, “Electric Power Monthly”

(July 2006), available at: http://www.cia.doe.gov/cneaf/electricity/epm/
epm_sum.html (last visited July 16, 2006).

* United States Environmental Protection Agency, “SO,; What is it?

Where does it come from?,” available at http://www.epa.gov/air/urbanair/
so2/what| .html (last visited July 16, 2006).

* United States Environmental Protection Agency, “NO,: What is it?
Where does it come from?,” available at http://www.epa.gov/air/urbanair/
nox/what! .html (last visited July 16, 2006).

14

of mercury each year.'°

These pollutants cause tremendous damage. SO,
contributes to respiratory illness, particularly in children and
the elderly, and aggravates existing heart and lung diseases. It
also contributes to the formation of acid rain, which damages
trees, crops, historic buildings, and monuments and makes
soils, lakes, and streams acidic. It also causes the formation of
atmospheric particles that cause visibility impairment, most
noticeably in national parks.'' NO, is one of the main
ingredients involved in the formation of ground-level ozone,
which can trigger serious respiratory problems and reacts to
form nitrate particles, acid aerosols, as well as NO,, which also
cause respiratory problems. NO, also contributes to formation
of acid rain, to nutrient overload that deteriorates water quality,
to visibility impairment, and to global warming. It also reacts
to form toxic chemicals."

The link between SO, and NO, and visibility impairment
is particularly well-known. Twenty-nine years ago, Congress
stated: “(the] visibility problem is caused primarily by emission
into the atmosphere of sulfur dioxide, oxides of nitrogen and ~
particulate matter, especially fine particulate matter, from
inadequate[ly] controlled sources.” H.R. Rep. 294, 95" Cong.
(1977), at 204, 1977 U.S.C.C.A.N. 1077, 1283 (1977).
According to the National Research Council, emissions of

° United States Environmental Protection Agency, “Controlling Power
Plant Emissions: Overview’available at http://www.epa.gov/mercury/
control_emissions/index.htm (last visited July 16, 2006).

"' United States Environmental Protection Agency, “Six Common Air
Pollutants: Chief Causes of Concern,” | itp://www.epa.gov/air/urbanair/
so2/chf} html (last visited July 16, 2006).

'? United States Environmental Protection Agency, “Six Common Air
Pollutants: Chief Causes of Concern,” available at: http://www.epa.gov/
air/urbanair/nox/chf] .htmi (last visited July 16, 2006).

15

sulfur oxides from electric utilities “alone are responsible for
slightly more than one-half of anthropogenic light extinction.
This is because sulfates are the predominant component of
anthropogenic haze in the East and electric utilities are the
predominant emitter of SO, (sulfur dioxide) in the East.
National Research Council, “Protecting Visibility in National
Parks and Wilderness Areas” (1993), at 216.

Another important pollutant linked to coal combustion is
mercury. Mercury in the air eventually settles into water or
onto land where it can be washed into water. Once deposited,
certain microorganisms can change it into methylmercury, a
highly toxic form that builds up in fish, shellfish and animals
that eat fish. Mercury exposure at high levels can harm the
brain, heart, kidneys, lungs, and immune system of people of all
ages. High levels of methylmercury in the bloodstream of
unborn babies and young children may harm the developing
nervous system, making the child less able to think and learn.
Birds and mammals that eat fish are more exposed to mercury
than other animals in water ecosystems. Similarly, predators
that eat fish-eating animals may be highly exposed. At high
levels of exposure, methylmercury's harmful effects on these
animals include death, reduced reproduction, slower growth
and development, and abnormal behavior."

Impacts of these pollutants on our nation’s National Parks
is pronounced. Great Smoky Mountains National Park
encompasses more than 800 square miles of the Southern
Appalachians in Tennessee and North Carolina and features
elevations ranging from 875 feet to 6,643 feet. Abundant
rainfall (averaging 55 inches a year in the valleys and 85 inches
on some peaks) and high summertime humidity provide
excellent growing conditions for an amazing variety of plants:

'° United States Environmental Protection Agency, “Frequent
Questions About Mercury,” available athttp://www.epa.gov/mercury/
faq.htm#3(last visited July 20, 2006).

16

approximately 100 species of native trees, more than 1,400
additional flowering plant species, and at least 4,000 species of
non-flowering plants. Forests blanket almost 95 percent of the
park; 25 percent is old-growth forest.'* The park also contains
74 percent of the spruce-fir forests in the southern
Appalachians, and is home to the largest remnant red
spruce-Fraser fir ecosystem in the world.'* The park is also
home to more than 200 species of birds, 66 types of mammals,
50 native fish species, 39 varieties of reptiles, 43 species of
amphibians, and one of the most diverse populations of
lungless salamanders. Mollusks, millipedes, and mushrooms
also are found in record variety.'®

Unfortunately, Great Smoky Mountains National Park also
has the highest rate of nitrogen and sulfur deposition of any
monitored location in North America. As a result, rainfall in
the park is 5-10 times more acidic than natural rainfall. In fact,
ten percent of streams in the Smokies sampled over an
eight-year period were so acidic that they threatened the
viability of brook trout populations. Furthermore, 90 percent
of clouds sampled in the park have been found to be unnaturally
acidic. Acidic clouds bathe the park's high elevation forests

_—_

'* National Park Service, “Great Smoky Mountains National Park:
Nature & Science: Overview,” available at: http://www.nps.gov/
grsm/pphtm//nature.htm| (last visited July 16, 2006).

'S National Park Service, “Air Quality in the National Parks, 2”

Edition,” p. 37, available at: http://www2.nature.nps.gov/air/Pubs/aqnps.
cfm.

‘© National Park Service, “Great Smoky Mountains National Park:
Nature & Science: Overview,” available at: http://www.nps.gov/
grsm/pphtmi/nature.html (last visited July 16, 2006).

17

during much of the growing season.'’ Acids in the soil poison
microorganisms, as well as trees and other plants.'* Research
shows that some high elevations in Great Smoky Mountains
National Park are receiving so much airborne nitrogen that the
soil suffers from advanced nitrogen saturation.

The Smokies also suffer from high levels of ozone
pollution. Ozone exposures in the park are among, the highest
in the East. On average, ozone levels over the ridgetops of the
park are up to two times higher than in nearby cities, including
Knoxville and Atlanta.” The number of days with ozone levels
above the national ambient air quality standard have risen
sharply since 1989 posing threats to vegetation, as well as park
visitors and employees. In 1999, the park recorded 52
“unhealthy” days that exceeded the standard.?' Studies indicate
that 30 species of plants experience leaf damage when exposed
to controlled ozone levels similar to those that occur in the
Smokies. Up to 90 percent of black cherry trees and tall
milkweed plants in numerous park locations show symptoms of

'’ National Park Service, “Air Quality in the National Parks, 2nd
Edition,” p. 37, available at: http://www2.nature.nps.gov/air/Pubs/aqnps.
cfm.

'* Great Smoky Mountains National Park Management Folio #2, Air

Quality, available at http://www.nps.gov/grsm/gsmsite/airquality0 1 .pdf (last
visited July 16, 2006).

'° National Park Service, “Great Smoky Mountains National Park:
Nature & Science: Air Quality,” available at:
http://www.nps.gov/grsm/pphtml/subenvironmentalfactors23.html (last

visited July 16, 2006).
2 Id.

*" National Park Service, “Air Quality in the National Parks, 2nd
Edition,” p. 41, available at: http://www2.nature.nps.gov/air/Pubs/aqnps.
cfm.

18

ozone damage. In general, researchers have found that ozone
exposure and damage are worse at higher elevations.”

Power plant emissions are not only major contributors to
the pollution problems in the Smokies set out above, but they
are also chiefly responsible for visibility degradation in the
park.”? Since 1948, based on regional airport records, average
visibility in the southern Appalachians has decreased 40% in
winter and 80% in summer. Annual average visibility at Great
Smoky Mountains National Park is 25 miles, compared to
natural conditions of 93 miles. During severe haze episodes,
visibility has been reduced to under one mile. This degradation
in visibility not only affects how far one can see from a scenic
overlook, but also how well one can see. Jd. Sulfate-caused
haze causes colors to appear washed out and obscures
landscape features. This pollution typically appears as a
uniform whitish haze, different from the natural mist-like
clouds for which the Smokies were named. /d. Increasingly,
visitors no longer see distant mountain ridges because of this
haze. This increased degradation has been traced directly to the
presence of sulfates, the concentrations of which have increased
in the region by 27% from 1984-1999. Jd.

The Smokies are not the only national park suffering from
visibility degradation. Shenandoah National Park is known
internationally for spectacular mountain scenes. Skyline Drive
was constructed in the 1930’s as a scenic drive along the crest
of the Blue Ridge mountains within Shenandoah National Park.
The road was designed and constructed to provide scenic views

* Great Smoky Mountains National Park Management Folio #2, Air
Quality, available at http://www.nps.gov/
visited July 16, 2006).

* National Park Service, “Great Smoky Mountains National Park:
Nature & Science: Air Quality,” available at:

http://www.nps.gov/grsm/pphtml/subenvironmentalfactors23.htm] (last
visited July 16, 2006).

19

within the park and into the Piedmont plateau to the east and
the Shenandoah Valley to the west. 76 overlooks, or pullouts
with parking, were constructed so motorists could stop at
intervals along the Drive and enjoy the views.“ According to
the National Park Service. however, “air pollution, particularly
during the summer season, has significantly degraded the
distance, color, contrast and landscape details of park views
from Skyline Drive, the Appalachian Trail, and high points in
the park.”” Like the Smokies, Shenandoah has also been
adversely impacted by acid deposition. Jd.

Other National Park units are suffering similar air pollution
detriments caused in large part by power plant emissions.
Researchers have found that mercury levels in the hair of
endangered Indiana bats collected from the Mammoth Cave
National Park are two to three times EPA's recommended limit
for humans. They believe that the mercury contamination is
likely the result of emissions from coal-fired power plants.”°

In Rocky Mountain National Park, more than twenty years
of study have linked changes in the chemistry of the park's
water and soils, as well as damage to park species like the
Engelmann spruce, to rising nitrogen levels in the park.*” The

** National Park Service, Shenandoah National Park, Nature and
Science, Scenic Vistas, available at: http://www.nps.gov/ htm]/
subenvironmentalfactors25.html (last visited July 16, 2006).

*° National Park Service, Shenandoah National Park, Nature and
Science, Air Quality, available at: // 2ov/ tml/
subenvironmentalfactors23.htmKlast visited July 16, 2006).

* Webb, et al. 2005. Occurrence and Distribution of Mercury in
Mammoth Cave National Park, Paper No. 167-7, Geological Society of
America.

*” National Park Service, Rocky Mountain National Park, Nitrogen
Deposition Correlated with Changes in Lake Organisms, available at:

http://www.nps.gov/romo/downloads/CDRLC/summari es/diatoms.pdf (last
20

nitrogen pollution has been traced to pollution from from
power plants, factories, oil and gas wells, fertilizer, and animal
feedlots. Jd. High-elevation ecosystems at Rocky Mountain
National Park are particularly vulnerable to nitrogen deposition
because the park's granite bedrock and shallow soils do not
provide much chemical buffering, and the short growing
seasons at high-elevation limit the amount of time plants have
to absorb nitrogen during the year. These alpine plants evolved
under very low nitrogen conditions, so they are less tolerant of
excess nitrogen added to the environment by air pollution.”

These parks and others are suffering these injuries even
though Congress sought to remedy the air pollution problem in
parks almost 30 years ago with the Clean Air Act Amendments
of 1977. Pub. L. 95-95, 91 Stat. 685 (1977). This Act granted
special protections to National Parks. See 42 U.S.C. § 7472
(designating National Parks over 6000 acres in size as Class I
areas) and 42 U.S.C. § 7475(d) (requiring additional measures
to insure that new and modified sources seeking permits under
the PSD program do not adversely impact Class I areas).
Indeed, the Act contains an entire program dedicated to
improving and protecting visibility in Class I areas. 42 U.S.C.
§§ 7491-92.

Although EPA has recently developed two rulemakings to
curb park-harming emissions from power plants, the Regional
Haze Rule, 64 Fed. Reg. 35714, (July 1, 1999) and 70 Fed. Reg.
39104 (Regional Haze Regulations and Guidelines for Best
Available Retrofit Technology (BART) Determinations), and
the Clean Air Interstate Rule (“CAIR”), 70 Fed. Reg. 25162

visited July 16, 2006).

* Rocky Mountain National Park Initiative, “Nitrogen Deposition:
Issues and Effects in Rocky Mountain National Park (Technical Background
Document),” March 2004, available at: http://www.cdphe.state.co.us
/ap/rmnp/noxtech.pdf (last visited July 16, 2006).

21

(May 12, 2005), those rules do not supersede the New Source
Review rules, and they do not take effect until 2015. See 70
Fed. Reg. 39145 (2005).
As Congress debated the 1977 Amendments to the Clean
Air Act, it believed that old, uncontrolled plants were being
phased out:
There are in the United States approximately 200 old
coal-fired power plants over 20 years of age. These plants
are moving into the second half of their useful service life.
They are operating at reduced capacity factors--some are
used on cyclical or peaking loads only and most operate at
less than 50 percent of their stated capacity. They are
typically among the most expensive units to operate on a
system. Most will be totally phased out of operation in the
next 5 to 20 years.
S. Rep. No. 127, 95" Cong. (1977), at 128 (Statement of
Senator Baker). Thus, as the D.C. Circuit noted in 1980:
Implementation of the statute’s definition of
“modification” will undoubtedly prove inconvenient and
costly to affected industries; but the clear language of the
statute unavoidably imposes these costs except for de
minimis increases. The statutory scheme intends to
“grandfather” existing industries; but the provisions
concerning modifications indicate that this is not to
constitute a perpetual immunity from ail standards under
the PSD program. If these plants increase pollution, they
will generally need 2 permit. Exceptions to this rule will
occur when the increases are de minimis, and when the
increases are offset by contemporaneous decreases of
pollutants. ...”
Alabama Power Co. v. Costle, 636 F.2d 323, 400 (D.C. Cir.
1980); see also Ohio Edison, 276 F. Supp. 2d at 850
(“Congress chose to ‘grandfather’ existing pollution sources
from the NSPS and NSR provisions at the time the statute was
enacted. ... Congress did not, however, intend that such

22

existing sources be forever spared the burden and expense of
installing pollution control devices.”).

This case and others filed by the Department of Justice and
citizens seek to bring into compliance sources that have
attempted to evade New Source Review requirements on a
massive scale. When EPA and the Department of Justice filed
this case in 1999, it also proceeded against six other utility
companies covering 17 power plants and estimated that the
failure of the identified utilities to comply with the New Source
Review regulations had “resulted in tens of millions of tons of
sulfur dioxide, nitrogen oxides, and particulate matter illegally
emitted into the air.” ” Amici believe that bringing Duke and
other violators of New Source Review requirements into
compliance will be a significant step forward in solving the air
quality problems faced by the nation’s National Parks.

CONCLUSION

For the foregoing reasons, the judgment of the Fourth
Circuit Court of Appeals should be reversed.

Respectfully submitted this 21* of July, 2006.

GEORGE E. HAYS

236 West Portal Avenue # 110
San Francisco, CA 94127
(415) 566-5414

° U.S. Department of Justice, U.S. EPA, “U.S. Sues Electric Utilities
in Unprecedented Action to Enforce the Clean Air Act,” press release,
November 3, 1999. Available at: http://www.usdoj.gov/opa/pr/1999/
November/524enr.htm (last visited July 15, 2006).

23

MICHAEL COSTA

Our Children’s Earth Foundation
100 First Street, Suite 100-367
San Francisco, CA 94105

(415) 896-5289

24

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0237%3A39. Public record. Not legal advice.