Petition for Writ of Certiorari — Alabama Power Co. v. Thomas
Supreme Court brief1988
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Supreme Court, U.S.
Q 61 riLED
No. 88- eee
mi OSEPELE. SPANIOL, JR,
CLERK
IN THE
Supreme Court of the United States
OCTOBER TERM, 1988
NATIONAL COAL ASSOCIATION AND
ALABAMA POWER Co., et al.,
Petitioners,
V.
NATURAL RESOURCES DEFENSE COUNCIL, et al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
DAVID C. BRANAND HENRY V. NICKEL
1130 17th Street, N.W.
Washington, D.C. 20036
(202) 463-2643
Counsel for Petitioner
National Coal Association
July 12, 1988
(Counsel of Record)
F. WILLIAM BROWNELL
MEL S. SCHULZE
HUNTON & WILLIAMS
2000 Pennsylvania Ave., N.W.
Suite 9000
Washington, D.C. 20006
(202) 955-1500
Counsel for Petitioners
Alabama Power Co., et al.
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QUESTIONS PRESENTED
1. Whether, consistent with Chevron U.S.A., Inc. v.
NRDC, the D.C. Circuit can reject EPA’s interpretation
of § 123 of the Clean Air Act, 42 U.S.C. § 7423 (1982),
and require sources to conduct case-by-case demonstra-
tions to justify stack height credit up to Good Engineer-
ing Practice (GEP) statutory formula height, when the
plain language and EPA’s interpretation of § 123 would
require such demonstrations only where a source seeks
GEP credit above GEP formula height?
2. Whether the D.C. Circuit ignored the doctrines of
law of the case and res judicata in remanding a rule
that had been upheld previously by another panel of that
court, and in allowing petitioners to challenge a revised
rule that fully implements what those petitioners had
argued for in a previous case?
(i)
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PARTIES TO THE PROCEEDINGS
This case involves challenges to final regulations prom-
ulgated by the United States Environmental Protection
Agency (EPA) pursuant to § 123 of the Clean Air Act,
42 U.S.C. § 7423 (1982). The Natural Resources De-
fense Council (NRDC) and Sierra Club were petitioners
in No. 85-1488. The States of New York, Rhode Island,
Connecticut, Vermont, Maine, and New Hampshire, and
the Commonwealth of Massachusetts were petitioners in
No. 85-1489. The State of New Jersey was petitioner in
No. 85-1554. The Environmental Defense Fund (EDF)
was petitioner in No. 85-1552. Alabama Power Co., et al.
were petitioners in No. 85-1543. Ohio Power Company
was petitioner in No. 85-1556. Ormet Corporation was
petitioner in No. 85-1558. The National Coal Association
was petitioner in No. 85-1560. Monongahela Power Co.
and Potomac Edison Co. were petitioners in No. 85-1557.
The United Mine Workers of America was petitioner in
No. 85-1568. Lee M. Thomas, EPA Administrator, and
EPA were Respondents in all of these proceedings. The
proceedings were consolidated on October 25, 1985.
Petitioners here, and intervening on behalf of respond-
ents in certain of the petitions below (Nos. 85-1488, 85-
1489, 85-1552, 85-1554), are Alabama Power Co., 64
other electric utilities,* Edison Electric Institute, Na-
tional Rural Electric Cooperative Association, American
Public Power Association, and National Coal Associa-
tion. The other intervenors on behalf of respondents
below were the American Paper Institute and Na-
tional Forest Products Association (‘intervenors on all
petitions), Kennecott (Nos. 85-1488, 85-1489, 85-1552),
the Natural Resources Defense Council and Sierra Club
(intervenors on all petitions except No. 85-1488), and
* A list of the individual companies that comprise Petitioners
Alabama Power Co., et al., and all parent companies, subsidiaries,
and affiliates is contained in the supplemental appendix attached to
this Petition pursuant to Rule 28 of this Court.
ee
ili
the State of Ohio (No. 85-1488). Participating as amici
curiae in support of respondents on certain issues raised
in Nos. 85-1488, 85-1489, 85-1552, and 85-1554 were the
States of Indiana, Mississippi, and Georgia.
Two other consolidated petitions for review, one filed
by Ohio Power Co. (No. 86-1331) and the other filed by
Ormet Corporation (No. 86-1362), were decided in the
same judgment of the court below as the preceding peti-
tions. These two petitions, which were not consolidated
with Nos. 85-1488, et al., sought review of EPA’s denial
of an administrative petition for reconsideration of cer-
tain of the § 123 regulations. The Respondents in that
proceeding were also Lee M. Thomas, Administrator,
and EPA. The Natural Resources Defense Council and
Sierra Club intervened on behalf of EPA in both peti-
tions.
Pursuant to Rule 19.6 of this Court, all petitioners,
respondents and respondent-intervenors below other than
Petitioners here are Re.:pondents in this Court.
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ........-..-..cccccccsecsecsecseecesseeseeo vi
COrewamen wi ae 1
JURISDICTION ........... PE Ay TOT SOL ee 2
STATUTORY AND REGULATORY PROVISIONS
SP ee 2
STATEMENT OF THE CASE oncecoccoccccoecocceccececcesseceeeeeee- 3
I. THE ORIGIN OF §128 mis tee 4
II. EPA’S FIRST § 123 RULEMAKING 7
III. THE 1983 D.C. CIRCUIT DECISION .......... 9
IV. EPA’S SECOND § 123 RULEMAKING... 11
V. THE 1988 D.C. CIRCUIT DECISION........_ 12
VI. REQUESTS FOR REHEARING... 16
REASONS FOR GRANTING THE PETITION ... Tt ee
I. THE D.C. CIRCUIT FAILED TO APPLY THE
CHEVRON DOCTRINE AND TO GIVE DEF-
ERENCE TO EPA’S REASONABLE INTER-
PRETATION OF § 128 ......................... igen 18
II. CERTIORARI SHOULD BE GRANTED TO
CLARIFY THE APPLICATION OF THE DOC-
TRINES OF LAW OF THE CASE AND RES
JUDICATA TO JUDICIAL REVIEW OF
AGENCY REMAND PROCEEDINGS ............ 22
Ill. THE DECISION OF THE D.C. CIRCUIT
WILL HAVE A SUBSTANTIAL ADVERSE
IMPACT ON ADMINISTRATION OF THE
CrEAN AIR ACT ne See se Sei 24
COBOC I rccisencciiitacipipeaice eS er care x 26
(v)
vi
TABLE OF AUTHORITIES
CASES: Page
Allen v. McCurry, 449 U.S. 90 (1980) .. 22
Big Rivers Electric Corp. v. EPA, 523 F.2d 16 (6th
Cir. 1975), cert. denied, 425 U.S. 934 (1976)... 6
Chevron USA, Inc. v. NRDC, 467 U.S. 837 (1984). . 9,20,
21
City of Farmington v. FERC, 820 F.2d 1308 (D.C.
Cir. 1987) . seed 21
INS v. Cardosa-Fonsece, 107 S. Ct. 1207 (1987) .. 21
Insurance Group Committee v. Denver & Rio
Grande Western Railroad, 329 U.S. 607 (1947). 22
International Union v. Brock, 816 F.2d 761 (D.C.
+; Spee Wake = 21
Kennecott Copper Corp. v. “Train, 526 F.2d 1149
(9th Cir. 1975), cert. denied, 425 U.S. 935
CIGD . ccarssstsesstnttiinsetnasniiialliiniiinaasiaipaienieael een 6
Messinger v. Anderson, 225 U.S. 436 (1912)...... 22
Motor Vehicle Manufacturers Ass'n v. Ruckels-
haus, 719 F.2d 1159 (D.C. Cir. 1983) .......... 19
NRDC v. EPA, 529 F.2d 755 (Sth Cir. 1976). 6
NRDC v. EPA, 489 F.2d 390 (5th Cir. 1974),
rev'd on other issues sub nom. Train v. NRDC,
421 U.S. 60 (1975) . ™” 6
NRDC v. Thomas, 838 “F.2d “4224 (D.C. "Cir.
BED cccrsesitessustntisiciantndinieaiitpaiaanel passim
Ruiz v. INS, 813 F.2d 283 (9th Cir. 1987), aff'd en
banc, 838 F.2d 1020 (9th Cir. 1988) ............... 21
Sierra Club v. EPA, 719 F.2d 436 (D.C. Cir.
1983), cert. denied sub nom. Alabama Power Co.
v. Sierra Club, 468 U.S. 1204 (1984) —..............passim
Union of Concerned Scientists v. U.S. Nuclear
Regulatory Commission, 824 F.2d 108 (D.C. Cir.
1987) .. eee eee 21
United States v. Shimer, 367 US. ‘874 (1961). aaa 20
STATUTES:
ee Ot) |
28 U.S.C. § 2101(c) (1982) ..
t to
vii
TABLE OF AUTHORITIES—Continued
Page
The Clean Air Act, 42 U.S.C. § 7401, et seq.
(1982)
§ 108, 42 U.S.C. § 7408 (1982)
§ 109, 42 U.S.C. § 7409 (1982) cameleon
§ 110, 42 U.S.C. § 7410 (1982)... 4,
§ 116, 42 U.S.C. § 7416 (1982)
§$ 123, 42 U.S.C. § 7423 (1982) ...
§ 123(c), 42 U.S.C. § 7423(c) (1982)
§ 163, 42 U.S.C. § 7473 (1982) RCE
§ 307(b) (1), 42 U.S.C. § 7607(b) (1) (1982).
REGULATIONS:
40 C.F.R. § 50.4 (1987) sseeaueinialians
40 C.F.R. § 51.166(c) (1987)...
FEDERAL REGISTER:
38 Fed. Reg. 25697, et seq. (1973) ee
11 Fed. Reg. 7450, et seq. (1976) _... RAT
14 Fed. Reg. 2608, et seq. (1979) pe
45 Fed. Reg. 42279, et seq. (1980)
16 Fed. Reg. 49814, et seq. (1981) scien
47 Fed. Reg. 5864, et seq. (1982) perk Lhe
50 Fed. Reg. 27892, et seq. (1985)... oA ...-11, 12, 15
MISCELLANEOUS:
or
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bm Doha zk on h &
oman] o vu
H.R. Rep. No. 564, 95th Cong., Ist Sess. (1977)... 10, 19
H.R. Rep. No. 294, 95th Cong., 1st Sess. (1977). 19
123 Cong. Rec. 27,071 (daily ed. August 4, 1977) S
IN THE
Supreme Court of the United States
OCTOBER TERM, 1988
No. 8&-
NATIONAL COAL ASSOCIATION AND
ALABAMA POWER Co., et al.,
. Petitioners,
NATURAL RESOURCES DEFENSE COUNCIL, et al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
The National Coal Associaton, Alabama Power Co., 64
other individual electric utilities, Edison Electric Insti-
stitute, National Rural Electric Cooperative Association,
and American Public Power Association respectfully pe-
tition for a writ of certiorari to review the judgment of
the United States Court of Appeals for the District of
Columbia Circuit entered on January 22, 1988 in Case
Nos. 85-1488, 85-1489, 85-1554, and 85-1552. These
cases are challenges by NRDC, Sierra Club, EDF, and
certain northeastern states to EPA’s final § 123 rules.
Petitioners had intervened in these cases below on behalf
of Respondent EPA.
OPINION BELOW
The opinion of the U.S. Court of Appeals in Natural
Resources Defense Council, et al. v. Thomas, et al., Nos.
85-1488, et al. (D.C. Cir. January 22, 1988), is reported
! The 65 individual utility petitioners and their parent companies,
subsidiaries. and affiliates are set forth in the supplemental ap-
pendix attached to the Petition pursuant to Rule 28 of this Court.
2
at 838 F.2d 1224. A copy of the opinion appears in the
Appendix (hereinafter referred to as “App. )
la-64a.
JURISDICTION
The judgment of the U.S. Court of Appeals for the
D.C. Circuit was entered on January 22, 1988.° Three
timely Petitions for Rehearing and Suggestions for Re-
hearing En Banc, and two timely Petitions for Rehear-
ing, were denied on April 13, 1988, App. 65a-68a. This
petition for a writ of certiorari is being filed within
ninety days of that date pursuant to 28 U.S.C. §2101(c)
(1982; and Rules 20.2 and 20.4 of this Court. This
Court’s jurisdiction is invoked pursuant to 28 U.S.C.
§ 1254(1) (1982).
STATUTORY AND REGULATORY
PROVISIONS INVOLVED
The following statutory and regulatory provisions are
set forth in the Appendix:
1. Clean Air Act $$ 110(a) (1)-(a) (2) (K), 128,
42 U.S.C. §§$ 7410(a) (1)-(a) (2) (K), 7423
(1982), App. 172a-177a.
2. 49 Fed. Reg. 44878-44887 (1984) (Proposed
Stack Height Regulations), App. 134a-171a.
3. 50 Fed. Reg. 27892-27907 (1985), recodified at
40 C.F.R. §§ 51.100(ff)-(kk) (1987) (Final
Stack Height Regulations), App. 77a-133a.
4, Administrative Procedure Act §§4, 10(e), 5
U.S.C. $$ 5538, 706 (1982), App. 178a-180a.
2The court below had jurisdiction of these cases under § 307
(b)(1) of the Clean Air Act, 42 U.S.C. § 7607(b)(1) (1982), which
provides the District of Columbia Circuit with exclusive jurisdic-
tion to review any “nationally applicable regulations . . . promul-
gated by the Administrator... .”
3
STATEMENT OF THE CASE
In the 1977 Clean Air Act Amendments, Congress en-
acted a short and simple statutory provision to codify
historical engineering practice regarding the stack height
needed to prevent downwash of a source’s emissions to
ground level. This provision, § 123 of the Act,* defines
a “good engineering practice” (“GEP”) formula and re-
quires EPA to call for case-by-case demonstrations if a
source wants to justify credit above this GEP formula
height. Given the simplicity of this scheme, Congress
gave the Agency only six months to implement this pro-
vision through regulation.
After ten years and two decisions from the D.C. Cir-
cuit, the Agency has been required to undertake a third
round of rulemaking to implement this seemingly
straightforward statutory scheme. In its most recent
decision, the D.C. Circuit draws distinctions between
“original” and “replacement” stacks and, for sources
that seek credit up to GEP formula height for a replace-
ment stack, requires EPA to demand case-specific demon-
strations unless the stack can be grandfathered under
one of up to six separate categories of GEP grandfather-
ing rules suggested by the court.* As a practical matter,
therefore, the Agency will be forced in this new round of
rulemaking to abandon the simple approach of adopting
a GEP formula and requiring demonstrations only where
sources wish to justify above-formula height GEP credit.*
The lower court’s decision initiates a second decade of
rulemaking for EPA under a provision for which Con-
342 U.S.C. § 7423 (1982), App. 176a-177a. The Clean Air Act
appears at 42 U.S.C. § 7401, et seg. (1982) (hereinafter referred to
as “CAA” or “the Act”). For convenience, all further citations will
be to the Act. Parallel citations to the U.S. Code are given in
the Table of Authorities.
4 See NRDC v. Thomas, 838 F.2d 1224, 1245-46 (D.C. Cir. 1988),
App. 38a-40a.
5 See infra note 46.
ma as
4
gress anticipated final rules could be promulgated in a
straightforward, six-month rulemaking proceeding. Given
the shifting standards the lower court has applied in re-
viewing the Agency’s stack height rules, there can be no
assurance that this round of rulemaking will be the last.
I. THE ORIGIN OF § 123
Under the Clean Air Act, EPA has established a sys-
tem of air quality regulation that is based upon “Na-
tional Ambient Air Quality Standards” (“ambient stand-
ards”) and “Prevention of Significant Deterioration” in-
crements (“PSD increments”). Section 110 of the Act
directs the states to set emission limitations for individ-
ual sources that ensure their smokestack emissions will
not, after dispersion, cause or contribute to ground level
pollutant concentrations that exceed the ambient stand-
ards or PSD increments.
Of course, if there were no dispersion, it would not be
possible to operate any industrial fuel-burning facility
without creating ground-level pollutant concentrations
that exceed ambient air quality standards and PSD in-
crements by factors of many thousand’? Thus, Congress,
in adopting the Clean Air Act, and EPA in implement-
6 The ambient standards define maximum ground level concentra-
tions of pollution which, if attained, will assure protection of public
health and welfare. CAA §§ 108, 109. The PSD increments define
the maximum increases in ground level concentrations that are
allowed to occur as a result of new construction in areas where the
ambient standards are met. CAA § 163.
7For example, if the emissions from a well-controlled source
(e.g., a power plant meeting the stringent EPA new source stand-
ards) were released at ground level without dispersion, they would
create ambient concentrations of sulfur dioxide (SO,) in the range
of 900,000 micrograms per cubic meter in the vicinity of the source.
By comparison, the primary (public health) ambient standard for
SO, is 365 micrograms per cubic meter (24-hour calendar day aver-
age), and the Class II PSD increment is 91 micrograms per cubic
meter (24-hour calendar day average). 40 C.F.R. §§ 50.4, 51.166(c)
(1987).
5
ing it, have recognized that industrial activity and pro-
tection of the public health and welfare could not co-
exist without some reliance on dispersion.
In the initial development of the § 110 state plans in
the early 1970s, a dispute arose between EPA, the states,
and other interested parties regarding the extent to which
sources could rely on the dispersion that was inherent in
elevated releases. EPA recognized, as had engineers be-
fore the Act came into existence, that releases must be
elevated by a stack tall enough to avoid public exposure
to concentrated emission plumes at ground level. On the
other hand, EPA also recognized that sources might at-
tempt to use “tall stacks” (i.e., stacks taller than engi-
neers had traditionally thought was necessary to ensure
that a concentrated emission plume would not quickly be
brought to ground level due to downwash) to enhance
dispersion as a means of avoiding a reduction in the vol-
ume of pollutant emissions.
In 1973, EPA proposed rules to prohibit the use of
stacks taller than “good engineering practice” (“GEP’’)
height as means of avoiding a reduction in the amount
of polluants released by the source.* In that proposal,
EPA defined GEP stack height as two and one-half times
the height of the source (“2.5H”), the traditional engi-
neering rule of thumb determined to be the minimum
stack height that prevents downwash of a source’s emis-
sions plume to the ground.’ Although the 1973 proposal
8 38 Fed. Reg. 25697 (1973).
*Id. at 25700. The proposal provided that, “[f]or fairly level
terrain, good engineering practice will normally result in stack
height approximately two and one-half times the height of the
facility and nearby obstructions.” EPA recognized, however, that
in rugged terrain areas, GEP height might be greater than provided
by the 2.5H formula in order to avoid terrain-induced downwash.
Id. “Downwash” occurs when the emission plume from a stack is
caught in wakes or eddies downwind of a nearby structure or
terrain feature and is quickly brought to the ground with only
limited dilution in the ambient air.
6
was never promulgated, EPA refused after 1973 to ap-
prove $110 state plans that allowed reliance on disper-
sion techniques such as “tall stacks,” and EPA’s decisions
were upheld by the courts."*°
In 1977, Congress added § 123 to the Act to make
explicit in statutory language the 1973 policy being fol-
lowed by EPA." Section 123(c) defines GEP stack
height as
the height necessary to insure that emissions from
the stack do not result in excessive concentrations
of any air pollutant in the immediate vicinity of
the source as a result of atmospheric downwash,
eddies and wakes which may be created by the
source itself, nearby structures or nearby terrain
obstacles (as determined by the Administrator).
Based upon the traditional engineering notion of GEP,
Congress stated that GEP stack height “shall not exceed
two and a half times the height of the source [the
“2 5H” formula], unless the [source] owner or operator
demonstrates . . . to the satisfaction of the Administra-
tor, that a greater stack height is necessary” to ensure
against excessive pollutant concentrations due to down-
wash.
10 Kennecott Copper Corp. v. Train, 526 F.2d 1149 (9th Cir.
1975), cert. denied, 425 U.S. 935 (1976); Big Rivers Electric Corp.
v. EPA, 523 F.2d 16 (6th Cir. 1975), cert. denied, 425 U.S. 934
(1976). One $110 state plan that allowed use of “tall stacks” had
been approved by EPA prior to adoption of its 1973 policy. This
approval was reversed in 1974 by the Fifth Circuit. NRDC v.
EPA, 489 F.2d 390 (5th Cir. 1974), rev’d on other issues sub nom.
Train v. NRDC, 421 U.S. 60 (1975). See also NRDC v. EPA, 529
F.2d 755 (5th Cir. 1976) (upholding EPA’s subsequent approval of
that state plan after deletion of the dispersion technique provi-
sions).
11 In 1976, EPA had issued a revised stack height policy that
differed in certain respects from the 1973 proposed rule. 41 Fed.
Reg. 7450 (1976). The 1976 policy, however, was superceded by
the 1977 Amendments to the Act before it was ever applied in a
specific case.
7
IJ. EPA’S FIRST § 123 RULEMAKING
In January 1979, EPA proposed rules under § 123."
While the plain language of the statute allowed EPA
to adopt a rule giving sources credit to the 2.5H formula
unless a greater height was shown to be needed to avoid
downwash problems, EPA exercised its rulemaking dis-
cretion to adopt a generally applicable formula that was
more stringent than the statutory 2.5H formula. The
proposed GEP formula, the “H + 1.5L” formula, would
be applicable to all existing and new stacks.“ In ac-
cordance with the statute, case-by-case demonstrations
would be required only for sources that sought GEP
credit above this formula height.
Going further beyond the statutory requirements, the
1979 proposal would have given the permitting authority
(EPA or the state) discretion to require demonstrations
to justify credits up to formula height on a case-by-case
basis, in certain limited circumstances.'* In 1980, EPA
announced a “policy” that went further than the 1979
proposal, and required (as opposed to authorized) demon-
strations in support of the GEP formula in one instance
12 44 Fed. Reg. 2608 (1979).
13 Jd. at 2614. The formula establishes GEP stack height as the
height of the source (H) plus one and one-half times the lesser of
the height or width of the source (1.5L). Of course, if the width
is greater than the height, this refined formula produces a result
identical to the traditional 2.5H engineering formula.
14 For example, for sources that sought in the future to replace
existing short stacks with GEP formula stacks, EPA or a state
could require a demonstration of a downwash-related air quality
problem with the existing stack before the source could use the
GEP formula to establish credit for the new stack. Jd. In addition.
the permitting authority could in the future require, on a case-by-
case basis, demonstrations in support of the GEP formula. /d.
Under the 1973 proposal, there was no provision authorizing EPA
or the states to require a demonstration for credit up to formula
height. Rather, automatic credit to GEP formula height was avail-
able. As a result, these demonstration requirements would apply
prospectively.
8
—when a source proposed in the future to replace a short
stack with a new, taller stack (ie, a “replacement
stack’) and wanted credit up to formula height.” Un-
der both the 1979 proposal and the 1980 policy, however,
the GEP formula would have been used to establish stack
height credit in all cases except in the limited circum-
stances identified by EPA.
fter reproposal of its rules in 1981 to reflect changes
in the Agency’s thinking as to the requirements of § 123,
EPA in 1982 announced, for the first time, after benefit
of notice and comment rulemaking, the Agency’s inter-
pretation of § 123 of the Act.'* In the final rules prom-
ulgated in 1982, EPA retained the “H + 1.5L” GEP
formula applicable to all existing and new stacks, and
the requirement for demonstrations to justify above-
formula height GEP credit. However, the final rule (like
the 1981 reproposed rule, and unlike the 1979 proposal
and 1980 replacement stack policy) provided for auto-
matic credit up to GEP formula height. Under the 1982
final rule, the H + 1.5L formula would apply prospec-
tively from the date of the 1979 proposal, and sources
with stacks in existence prior to that date could use the
traditional 2.5H formula instead of the refined H + 1.5L
formula.”
As a result of these changes, the 1982 final rules
adopted a simple and straightforward approach to deter-
mining GEP stack height credit. They provided for (1)
the statutory GEP formula (2.5H) for stacks built be-
15 45 Fed. Reg. 42279, 42282 (1980).
16 46 Fed. Reg. 49814 (1981) ; 47 Fed. Reg. 5864 (1982).
1747 Fed. Reg. at 5866, 5868 (1982). Moreover, the 1982 final
rules did not include language that had been in the 1979 proposal
giving the permitting authority discretion to require demonstra-
tions in support of the GEP formula in specific cases. Id. at 5868.
As a practical matter, however, making explicit that states have
discretion to require GEP formula demonstrations in specific cases
would add nothing to state authority, since states can always re-
quire such demonstrations under § 116 of the Act.
ne res
8)
fore 1979, (2) a general GEP formula (H -—- 1.5L) for
stacks built in 1979 or later, and (3) demonstration
requirements for sources seeking above-formula height
GEP credit.
III. THE 1983 D.C. CIRCUIT DECISION
Two environmental groups (NRDC and Sierra Club)
challenged, inter alia, two aspects of the 1982 GEP
formula rules. First, these groups maintained (based on
the 1980 “policy”)** that EPA could not allow automatic
GEP formula credit for sources building replacement
stacks in the future without requiring a demonstration
identical to that which sources seeking credit above GEP
formula height must undertake. Second, they maintained
that EPA should have made explicit that the permitting
authority retains discretion to require demonstrations in
support of the GEP formula.” Third, these groups ar-
gued that EPA could not allow use of the traditional
2.5H formula (as opposed to the H + 1.5L formula) for
any source with stacks in existence prior to the 1979 pro-
posal.
In response to NRDC’s arguments for requiring GEP
demonstrations in certain instances for sources not seek-
ing greater than formula height credit, the D.C. Circuit,
in a decision pre-dating this Court’s opinion in Chevron
U.S.A., Inc. v. NRDC,*® agreed with EPA that “the
House committee, and perhaps the Congress generally,
probably had in mind a system of determining GEP
stack height involving a generalized formula applicable
to all sources except those seeking greater [than for-
mula] height.” *' However, based upon conflicting and
18 See supra note 15 and accompanying text.
19 See supra note 17.
20 467 U.S. 837 (1984) (“Chevron”).
“1 Sierra Club v. EPA, 719 F.2d 436, 457 (D.C. Cir. 1983), cert.
denied sub nom. Alabama Power Co. v. Sierra Club, 468 U.S. 1204
(1984) (emphasis added).
10
somewhat unreliable legislative history,” the court re-
jected EPA’s interpretation of the Act as authorizing
automatic GEP formula height credit for all stacks and
requiring demonstrations only for above-formula height
credit. Instead, the court imposed an interpretation that
required future stack height increases to undergo case-
specific demonstrations to justify credit up to GEP for-
mula height.*
The court therefore remanded the GEP formula rules.
On remand, EPA was directed to consider whether to
supplement the GEP formula rules with demonstration
requirements similar to those contained in the January
1979 proposal and the 1980 “policy.” *
Regarding NRDC’s challenge to the decision to apply
the H + 1.5L formula prospectively, by contrast, the
court held that, regardless of the existence of a more
refined formula (the H + 1.5L formula), EPA was
justified in allowing all sources with stacks in existence
prior to the 1979 proposal (i.e., original and replacement
stacks) to use the less accurate, traditional 2.5H for-
mula to determine GEP height.* The court found, how-
ever, that EPA should have restricted use of the 2.5H
formula to those sources that had actually relied upon
it in the past, and therefore remanded the rule for EPA
22 See id. at 458-59 (referring to a “conference report” appearing
at 123 Conc. Rec. 27,070 (1977), which was not the Conference
Report of the House and Senate but instead was a statement inserted
into the Congressional Record by Rep. Rogers during debate on the
officially published Conference Report; cf. Conference Report, H.R.
Rep. No. 564, 95th Cong., Ist Sess. 143-44 (1977) ). Thus, the court
found that the legislative history “disclose{[d] sharply conflicting
signals” and stated that “Congress [probably] thought that
traditional engineering practice [i.e., the 2.5H formula]” was accept-
able. Nevertheless, it resolved the “conflicting signals” itself rather
than deferring to EPA’s resolution of this conflict. 719 F.2d at
448, 450.
23 See id. at 459-60.
24 Jd.
*5 Id. at 467-68.
—.aaaaae -
11
“to reformulate its rule to take actual reliance into
account.” 7°
IV. EPA’S SECOND § 123 RULEMAKING
In response to the 1983 D.C. Circuit decision, EPA
provided for GEP formula demonstrations in the limited
circumstances identified by the court. Thus, EPA re-
quired, as petitioners NRDC and Sierra Club urged in
the 1982-1983 litigation, that sources replacing short
stacks after the remand conduct case-specific demon-
strations in order to justify use of GEP formula credit
for the new stack.** Consistent with the Sierra Club and
NRDC challenge and the Sierra Club decision,** this rule
was written to apply to replacement stacks built after
October 11, 1983, the date of the D.C. Circuit decision.”°
EPA also reinserted language similar to that in the
1979 proposal explicitly authorizing EPA or states to
require case-specific GEP formula demonstrations for
any stack built after the January 1979 proposal.*°
Finally, EPA amended the 2.5H rule by requiring,
pursuant to the Sierra Club decision, that the source
provide evidence that the 2.5H formula had been relied
upon in establishing an emission limitation before a
source could take advantage of that formula.*"
26 Jd. at 468.
*7 This change was made not in the GEP formula rule itself, but
rather in the definition of “excessive concentrations.” See 50 Fed.
Reg. 27892, 27906-07, § 51.1(kk) (2) (1985), App. 132a.
*8 That is, Sierra Club and NRDC’s argument was limited to
future replacement stacks. Brief of Sierra Club and NRDC in
Sierra Club (D.C. Cir. Nos. 82-1384, et al.) at 27-30 (October 25,
1982); 719 F.2d at 459-60.
“9 Sources with short stacks replaced before this date could con-
tinue to rely on automatic credit to the GEP formula (either the
2.5H or tne H + 1.5L formula, as appropriate), as they had done
in the past.
3050 Fed. Reg. at 27906-07, § 51.1(ii)(2) (ii), App. 130a, 27907,
§ 51.1(kk) (3), App. 132a.
$1 Jd. at 27906, § 51.1(ii) (2) (i), App. 130a,
|
12
Having made the limited refinements to the GEP for-
mula rules suggested by Sierra Club, EPA otherwise
maintained its basic approach to § 123, providing for use
of a general GEP formula that would determine stack
height credit in the majority of cases.“ Thus, most
sources could still base GEP stack height credit on the
general “H + 1.5L” or “2.5H” formulae, and demon-
strations would be required as a general matter only
when a source sought above-formula height credit or pro-
posed to build a new replacement stack in the future.
Vv. THE 1988 D.C. CIRCUIT DECISION
As they had in 1982, NRDC and Sierra Club, joined
by eight northeastern states* and the Environmental
Defense Fund (hereinafter referred to collectively as
“NRDC”), challenged, inter alia, the final GEP formula
rules. In contrast to the arguments in 1982, which EPA
addressed in the 1985 remand rulemaking,** NRDC raised
much broader challenges to the 1985 GEP formula rules.
First, NRDC challenged EPA’s decision to allow re-
placement stacks built before October 11, 1983, to use the
GEP formula, arguing that EPA improperly failed to ex-
tend to all replacement stacks built after 1970 the dem-
onstration rule that EPA adopted for post-October 11,
1983 replacement stacks. Second, NRDC challenged
EPA’s decision to allow original stacks built before Janu-
ary 1979 to use the GEP formula, arguing that EPA
should have extended the demonstration rule for post-
January 1979 stacks to all original stacks built after
1970. Finally, NRDC attacked not only the new reliance
32 See id. at 27897-98, App. 94a-95a. In response to the court’s
remand, EPA also added information to the rulemaking record
showing that the GEP formula was needed to protect against spe-
cific health and welfare concerns. /d. at 27896-97, App. 89a-94a.
33 Four of those states had intervened on behalf of NRDC and
Sierra Club in the 1982-1983 litigation.
54 See supra pp. 11-12.
———————
13
provision in the 2.5H rule, but also the 2.5H rule that
had previously been upheld in Sierra Club for those who
relied on the rule. In effect, therefore, by calling for
universal demonstration requirements, NRDC challenged
EPA’s implementation of § 123 through a general GEP
formula.
The lower court found that nothing in its earlier deci-
sion “required EPA to reevaluate the accuracy of the
. . . formula” that the Agency had adopted as the basic
tool for implementing § 123," and that “consideration of
deficiencies in the formula is barred by res judicata.” *
However, the court also found that if “the demonstra-
tion procedures chosen by EPA [in response to Sierra
Club were] . . . insufficient to fulfill the statutory pur-
poses,” then it could require EPA to rewrite those dem-
onstration requirements in a way that limited use of a
GEP formula.”
Given this approach, the court examined the H + 1.5L
GEP formula rule applicable to stacks built from August
1970 to October 1983. The court found EPA’s rule lack-
ing for failure to apply the post-October 1983 case-by-
case demonstration requirements to replacement stacks
built before this date, and for failure to apply the post-
January 1979 demonstration rule to original stacks built
before that date.** The court then examined the 2.5H
GEP formula rule applicable to replacement stacks built
between August 1970 and January 1979 in reliance on
* 838 F.2d at 1239, App. 26a.
** Id. The court, however, rejected in a footnote EPA’s efforts to
tie the formula to specific health and welfare effects. See id. at
1244 n.16, App. 36a. According to the Court, EPA never set out
“thoroughly to validate its H + 1.5L formula.” /d. at 1244. App.
56a. Moreover, as discussed below, the court rejected outright the
use of the 2.5H formula for pre-January 1979 replacement stacks
that had relied on this formula. /d. at 1246, App. 40a.
*t Jd. at 1239, App. 26a.
%8 Jd. at 1244-46, 1248, App. 36a-40a, 44a.
14
that formula.** Even though the D.C. Circuit had pre-
viously accepted this GEP formula rule where reliance
could be shown, the court extended its holding regarding
the need for GEP demonstrations to this category of
stacks as well.”
Accordingly, in spite of EPA’s apparently broad au-
thority to implement § 123 through a generally appli-
cable GEP formula, the D.C. Circuit’s earlier acceptance
of a formula approach,*' and NRDC’s failure to argue
for retroactive demonstration requirements in the earlier
litigation,*® the court found that the Agency had improp-
erly “grandfathered” replacement stacks subject to the
H + 1.5L and 2.5H formulae and original stacks sub-
ject to the H -+ 1.5L formula from GEP demonstration
requirements and remanded these rules to EPA.“
In place of the simple GEP formula scheme that had
been central to EPA’s program, the court described a
more complex approach. It identified what it believed
were six different regulatory policies that it claimed EPA
had applied in the period between 1970 and 1983,“ and
39 Jd. at 1244-46, App. 36a-40a.
«© Jd. However, the court affirmed the 2.5H rule, including the
reliance provision, as applied to a smaller category of sources—pre-
1979 original stacks at new sources. /d. at 1246-48, App. 4la-44a.
Curiously, the purpose of the 2.5H formula rule was to allow
sources that had relied upon the less accurate, traditional GEP
formula to avoid having to apply a “refined” formula that could
result in a different stack height credit. By definition, therefore,
the 2.5H formula was not as accurate as the refined formula or as
credit defined through case-by-case demonstrations. Nevertheless,
this GEP formula rule was previously found by the D.C. Circuit
to satisfy § 123. 719 F.2d at 467-68.
41 For example, the 2.5H rule applicable to pre-1979 stacks had
been affirmed in all but one respect by the D.C. Circuit in 1983.
See supra pp. 10-11.
42 See supra p. 9.
43.838 F.2d at 1244-46, 1248, App. 36a-40a, 44a,
44 Jd. at 1245, App. 38a-39a.
15
suggested that if EPA chose not to apply demonstration
requirements to pre-October 11, 1983 replacement stacks
and pre-January 1979 original stacks, EPA would need
to tailor its GEP formula grandfathering rules as closely
as possible to these allegedly varying regulatory poli-
cies.”
By extending GEP formula demonstration require-
ments to sources seeking only GEP formula credit, the
D.C. Cireuit has pushed the pre-Chevron Sierra Club de-
cision to its extreme. Section 123, on its face, gives EPA
broad discretion to proceed by GEP formula, and re-
quires use of demonstrations only for above-GEP for-
mula credit. The Sierra Club court, based on its own in-
terpretation of the statute, found that EPA must also
adopt certain limited demonstration requirements to jus-
tify GEP credit up to formula height. In the instant
case, the lower court has required that the Sierra Club
GEP demonstration approach be extended to virtually all
sources, in large measure writing out of the statute
EPA’s authority to adopt a generally applicable GEP
formula.”
*S Jd. at 1246, App. 40a.
** EPA’s GEP formula is based on information showing that the
formula is needed to protect against increases in downwash-
induced concentrations of forty percent or more, which increased
concentrations have adverse health and welfare implications. 50
Fed. Reg. at 27896-898 (1985), App. 93a-95a. While the court sug-
gested in passing that “EPA has the alternative of adopting a
formula clearly valid enough to dispense with demonstrations al-
together,” 838 F.2d at 1246, App. 40a, the court rejected EPA’s
attempt to support the H + 1.5L formula as not “thoroughly .
validate[d],” but gave EPA no guidance as to what the court might
view as an acceptable “validat[ion].” See id. at 1244 n.16, App. 36a;
supra note —-. To the extent the court’s statement regarding the
GEP formula is read to suggest that EPA must “thoroughly . . . vali-
date” the formula in terms of an absolute pollutant concentration
that creates a health or welfare concern, see 838 F.2d at 1244 n.16,
App. 36a, no general formula will be possible, since absolute con-
centrations vary with individual plant emission rates. In any
si uepeeneanemacesammaceaaaasiaaaaaaeaaia taaciasiast einai t
16
The D.C. Circuit’s most recent decision brings regula-
tion of stack height credit to a level of complexity that
is remarkable even in the area of environmental regula-
tion. On remand, EPA must consider different GEP
rules for new sources and existing sources; for replace-
ment stacks and original stacks; for pre-January 1979
stacks, pre-October 11, 1983 stacks; and post-October 11,
1983 stacks; and for various combinations of these cate-
gories of stacks and facilities. For one of these categories
of stacks—pre-October 11, 1983 replacement stacks——the
court’s decision suggests that EPA develop up to six GEP
grandfathering rules that apply based upon when the
stack was built. Case-specific demonstrations to justify
credits up to formula height are required for all non-
grandfathered stacks.
The regulatory program mandated by the D.C. Circuit
is a far ery from the statutory language which author-
izes EPA to provide for stack height credit up to GEP
formula height and requires demonstrations only to jus-
tify above-formula height GEP credit.
VI. REQUESTS FOR REHEARING
On March 7, 1988, EPA filed a timely Petition for
Rehearing on the issues presented in this petition. On
the same date, Respondent-Intervenors Alabama Power
Co., et al. filed a timely Petition for Rehearing and Sug-
gestion for Rehearing En Bane, on these issues. The
D.C. Cireuit denied these Petitions on April 13, 1988.
App. 65a-68a.
REASONS FOR GRANTING THE PETITION
In 1977, Congress added § 123 to the Clean Air Act.
EPA has consistently interpreted § 123 to be a relatively
event, the court’s detailed discussion of demonstration and grand-
fathering rules and passing rejection of the GEP formula approach
suggests, as a practical matter, that the Agency will proceed on
remand, in the court’s view, to adopt the case-by-case demonstration
and grandfathering scheme described in the lower court’s opinion.
SES |
a
simple statutory provision requiring EPA to adopt rules
governing “good engineering practice’ (“GEP”) credits
above the statutory GEP formula height (2.5 times source
height) and giving EPA discretion to adopt a generally
applicable formula that was more stringent than the
statutory 2.5H formula. In other words, EPA interpre-
ted the statute as only requiring case-by-case demonstra-
tions where the statute explicitly called for them—i.e.,
where a source wants stack height credit above formula
height.
In light of its interpretation of § 123 as only requiring
case-by-case demonstrations above formula height, EPA
sought to implement the § 123 program by means of a
generally applicable GEP formula beginning with its
first proposal in 1979. With a few exceptions mandated
by the D.C. Circuit’s 1983 decision, this approach was
maintained in the 1985 final rules.
Despite EPA’s long-standing interpretation of the Act,
the D.C. Circuit has substituted its interpretation of
$ 123 for that of EPA. As a result, the D.C. Circuit has
required EPA to implement § 123 not by means of a
generally applicable formula, but rather by means of
case-specific demonstrations for most sources subject to
$ 123, unless the source qualifies under one of potentially
numerous, detailed GEP “grandfathering” rules that dif-
fer depending on when a stack was built and what type
of stack it is (original or replacement).
As a result of the D.C. Circuit’s intervention, § 123
has been transformed into one of the most complex Clean
Air Act regulatory programs. Instead of final § 123 rules
being promulgated within six months of § 123’s enact-
ment, as Congress instructed in 1977 in the expectation
that § 123 would be simple and straightforward to im-
plement, ten years have passed and no end to this rule-
making is in sight.
The complexity introduced into the § 123 program by
the D.C. Circuit is a product of that court’s failure to
18
respect basic principles of law that delineate the respon-
sibilities of federal courts and agencies. First, the D.C.
Circuit has failed to give any deference to EPA’s inter-
pretation of § 123 of the Act to allow the Agency to pro-
ceed by general GEP formula. Rather, the court has
extended its pre-Chevron Sierra Club decision to replace
the Agency’s straightforward interpretation of the statute
with one that calls for multiple GEP grandfathering
rules and case-by-case demonstrations for those not
“orandfathered.” Chevron governs the D.C. Circuit’s re-
view of EPA’s implementation of § 123 and should have
led that court to uphold the Agency’s GEP formula rules.
Second, the D.C. Circuit has ignored the long-standing
doctrines of law of the case and res judicata in revisit-
ing issues that were previously raised and resolved (or
that could have been raised) in Sierra Club. Together
with the doctrine of deference, the doctrines of law of
the case and res judicata should be applied on review of
agency remand proceedings to limit judicial intervention
in agency decisionmaking. Failure to respect these doc-
trines leads, as in the instant case, to interference with
Congress’ delegation of rulemaking authority, and to con-
flicting signals for both regulatory agencies and regu-
lated parties.
Because of the D.C. Circuit’s actions, Petitioners urge
this Court to grant certiorari in this case to help bring
to a close ten years of rulemaking and litigation over a
simple and straightforward statutory provision.
I. THE D.C. CIRCUIT FAILED TO APPLY THE
CHEVRON DOCTRINE AND TO GIVE DEFER-
ENCE TO EPA’S REASONABLE INTERPRETA-
TION OF § 123.
Section 123 of the Clean Air Act requires the EPA
Administrator to implement the GEP stack height direc-
tive in a manner that will “insure” that unacceptable
downwash is avoided. Other than this statutory defini-
19
tion, and the restriction that GEP height may not exceed
the height provided by the traditional 2.5H GEP formula
in the absence of a case-specific demonstration, the Ad-
ministrator has complete discretion to implement the GEP
directive by general rule.
The Conference Report to § 123 is more explicit than
the statute regarding the meaning of GEP. The Report
states that GEP is “defined at . . . 214 times the height
of the source,” unless a source demonstrates that a stack
height greater than 2.5H is necessary to insure against
excessive pollutant concentrations resulting from aero-
dynamic downwash.*
Based on this broad grant of authority and the Con-
ference Report’s discussion of GEP, the Administrator
in 1982 adonted a straightforward interpretation of the
statute to authorize establishment of a general GEP for-
mula, and deve'onment of demonstration requirements
for above-formula height credit.** While the D.C. Cir-
cuit in 1983 recognized that Congress “probably had in
mind” implementation of the GEP directive in terms of
a generally applicable formula that reflected engineering
practice,*® it nevertheless directed the Agency to adopt on
47 H.R. Rep. No. 564, 95th Cong., Ist Sess. 143 (1977). See also
H.R. Rep. No. 294, 95th Cong., Ist Sess. 93 (1977) (“‘A stack height
value produced by reference to this historical relationship [i.e.,
2.5H] is referred to as ‘good engineering practice’ stack height
BEEN ae 7
48 While the statute, on its face, only requires demonstrations
to justify credits above 2.5H formula height, EPA exercised its
discretion to adopt a more stringent GEP formula (the H + 1.5L
rule). The Administrator in 1982 promulgated the refined GEP
formula applicable to stacks constructed after issuance of the 1979
proposed rules, and provided that the traditional 2.5H GEP formula
would be applicable to stacks constructed before the 1979 proposal.
See supra pp. 7-9.
49 See supra pp. 9-10. Use of a “good engineering practice” stand-
ard to reflect an engineering rule of thumb is not unusual. See
Motor Vehicle Manufacturers Ass’n v. Ruckelshaus, 719 F.2d 1159,
20
remand a scheme that anticipated some demonstrations
to justify credits up to formula height. The court in
1983 ctherwise left the GEP formula as the centerpiece
for § 123 implementation, upholding the use of the 2.5H
formula for most pre-1979 stacks and the H -!- 1.5L for-
mula for most other stacks.”
In its most recent decision, the D.C. Circuit has sub-
stantially expanded its 1983 decision and has thrown
into question whether § 123 can ever be implemented
through a straightforward GEP formula. The court’s
clearly preferred alternative on remand, and perhaps
the only realistic alternative,*' appears to be creation of
numerous distinct GEP grandfathering rules for differ-
ent categories of stacks with a requirement for case-by-
case GEP demonstrations if the source cannot qualify for
grandfathering.™”
In Chevron, decided after the 1983 D.C. Circuit deci-
sion but well before the court’s latest decision, this Court
stressed that if the agency’s choice
represents a reasonable accommodation of conflicting
policies that were committed to the agency’s care
by the statute, [a court] . . . should not disturb it
unless it appears from the statute or its legislative
history that the accommodation is not one that Con-
gress would have sanctioned.
In other words, if Congress “did not actually have an
intent regarding” the precise issue resolved by the
Agency, the question for the court is whether the agency’s
1167 (D.C. Cir. 1983) (EPA’s interpretation of ‘““GEP” in the con-
text of the mobile source provisions of the Act to reflect traditional
engineering practice was upheld.).
” See supra pp. 10-11.
51 See supra note 46.
52 See supra pp. 14-16.
53 467 U.S. at 845, quoting United States v. Shimer, 367 U.S. 374,
383 (1961).
21
resolution of the issue is “reasonable.” ** The question
for the court is not “whether in its view” the agency’s
resolution of the issue is “inappropriate.” ”
In this case, the D.C. Circuit has once again imposed
its interpretation of this statutory provision on the
Agency, an interpretation an earlier panel had based upon
admittedly ambiguous legislative history.’ In this case,
the lower court has extended its earlier holding in a
manner that virtually precludes use of a general GEP
formula.** The lower court has either lost sight of its
proper rule in reviewing an agency’s regulations, or has
sub silentio decided that Chevron does not apply in.
the circumstances of this case** That the lower court.
originally interpreted this statute for the Agency prior
to Chevron should not insulate that court in this case
from the standards enunciated in Chevron regarding the
proper rules of federal courts and agencies in interpret-
ing a statute granting the agency broad rulemaking
powers.
As a result of the lower court’s substitution of its
view of the statute for that of EPA, a Clean Air Act
54 467 U.S. at 845.
55 Id.
56 See supra note 22.
57 See supra note 46.
58 Indeed, in the D.C. Circuit and other circuits, some question
has been raised as to the scope and applicability of Chevron. Thus,
the D.C. Circuit has read this Court’s opinion in INS v. Cardoza-
Fonseca, 107 S. Ct. 1207 (1987), to hold that the Chevron does not
apply to “questions of pure statutory interpretation,” and that
courts have free reign to address such questions of interpretation.
See, e.g., Union of Concerned Scientists v. U.S. Nuclear Regulatory
Commission, 824 F.2d 108, 113 (D.C. Cir. 1987); Int’l Union v.
Brock, 816 F.2d 761, 764-65 (D.C. Cir. 1987); City of Farmington
v. FERC, 820 F.2d 1308, 1317 (D.C. Cir. 1987) (Wald, dissenting).
The Ninth Circuit has also suggested that federal courts have more
latitude on issues of statutory interpretation under Cardoza-
Fonseca than under Chevron. See Ruiz v. INS, 813 F.2d 283, 288
(9th Cir. 1987), aff'd en banc, 838 F.2d 1020 (9th Cir. 1988).
22
program which Congress perceived to be simple and
straightforward has been transformed into one of the
most complex regulatory programs under the Act. The
D.C. Circuit’s intervention into the domain of EPA is un-
warranted and, since Chevron was issued, unprecedented.
This Court should hear this case to clarify for the D.C.
Circuit, and for the circuits generally, the proper role of
federal courts in reviewing agency interpretations of
their enabling statutes.
II. CERTIORARI SHOULD BE GRANTED TO CLAR-
IFY THE APPLICATION OF THE DOCTRINES OF
LAW OF THE CASE AND RES JUDICATA TO JU-
DICIAL REVIEW OF AGENCY REMAND PRO-
CEEDINGS.
In order to ensure efficient judicial review and fair-
ness to litigants, this Court has announced several doc-
trines of law to guide lower federal courts in cases char-
acterized by repetitive litigation. One of these long-
standing doctrines, known as the law of the case, pro-
vides that
[w]hile power rests in a federal court that passes
an order or decision to change its position on a sub-
sequent review in the same cause, orderly judicial
action, except in unusual circumstances, requires it
to refuse to permit the relitigation of matters or
issues previously determined on a former review.
A related doctrine announced by this Court, the doctrine
of res judicata, provides that
a final judgment on the merits of an action pre-
cludes the parties or their privies from relitigating
issues that were or could have been raised in that
action.
59 Insurance Group Committee v. Denver & Rio Grande Western
Railroad Co., 329 U.S. 607, 612 (1947) (footnote omitted); accord,
Messinger v. Anderson, 225 U.S. 436, 444 (1912).
6 Allen v. McCurry, 449 U.S. 90, 94 (1980).
—
23
Except for a remand solely for EPA to include a reli-
ance requirement in the 2.5H GEP formula rule, the D.C.
Circuit in 1983 upheld that rule. By contrast, upon re-
view in 1988 of the identical rule to which a reliance re-
quirement had been added, the D.C. Circuit remanded the
rule as it applied to a large number of facilities (i.e.,
sources with replacement stacks), even though the court
sustained the new reliance provision.”
The lower court in this case did recognize that the
doctrine of res judicata was applicable in regard to cer-
tain issues raised by NRDC.* However, concerning the
2.5H formula issue, the court simply failed to consider
this doctrine, even though Respondent-Intervenors had
argued that the doctrine was applicable. As a result,
EPA must on remand reconsider issues that it thought
had been settled in Sierra Club five years ago.
Since any challenge to the 2.5H formula as it applies
to replacement stacks could have been raised, and was
ripe for review, in the 1983 litigation, the lower court
should have refused to consider NRDC’s untimely 1988
challenge under the doctrine of res judicata. Moreover,
since the D.C. Circuit in 1983 upheld the 2.5H rule ap-
plicable to all pre-January 1979 stacks against a general
61 See supra pp. 10-11.
62 See 838 F.2d at 1244-48, App. 36a-44a. EPA had pointed out
to the court that its review should be limited to the reliance provi-
sion, but the court did not understand EPA’s argument. /d. at 1244,
App. 36a. Although EPA explained the point again in a petition for
rehearing, the court without explanation refused to reconsider its
opinion. App. 65a-66a.
83 See, e.g., 838 F.2d at 1252, App. 52a. On one issue, the court
decided that the doctrine did not apply. Jd. at 1235, App. 17a.
64 This issue was whether NRDC, having in 1983 successfully
challenged EPA’s refusal to require case-specific demonstrations
for new replacement stacks, could in this case challenge EPA’s con-
tinuing refusal to require demonstrations for existing replacement
stacks.
24
NRDC attack, with the exception of requiring a reliance
showing, the court should have refused to hear NRDC’s
later general challenge to that rule under the doctrine
of law of the case.
Given the confusion in the D.C. Circuit as to the ap-
plicability of these doctrines, and the importance of the
D.C. Cireuit in reviewing actions of administrative agen-
cies, it is important that this Court grant certiorari to
clarify application of the doctrines of Jaw of the case and
res judicata on judicial review of remand rulemaking.
Ill. THE DECISION OF THE D.C. CIRCUIT WILL
HAVE A SUBSTANTIAL ADVERSE IMPACT ON
ADMINISTRATION OF THE CLEAN AIR ACT.
As discussed previously, EPA has consistently inter-
preted § 123 to authorize implementation by means of
a generally applicable GEP formula.” In the 1982-83
D.C. Circuit litigation, this approach was not generally
challenged, except as applied to sources that in the fu-
ture sought to replace existing stacks below formula
height with new replacement stacks.”
In its latest opinion, the D.C. Circuit has rejected
EPA’s straightforward GEP formula approach in favor
of the court’s own approach that would subject sources
with pre-1979 original stacks and pre-October 1983 re-
placement stacks (which together constitute the majority
of sources now subject to § 123) to case-by-case GEP
formula demonstrations when they do not qualify under
a complex set of GEP grandfathering rules suggested
65 See supra pp. 7-9, 11-12.
66 See 719 F.2d at 459-60. For these sources, the court suggested,
as petitioners Sierra Club and NRDC had urged, that demonstra-
tions to show a downwash problem should be required before the
GEP formula could be used. EPA added such a requirement in the
1985 final rules, which the court in this proceeding affirmed. 838
F.2d at 1239-40, App. 26a-28a.
25
by the court. The implications of this decision for EPA’s
administration of the Act are significant.
At the outset, EPA must divert scarce budgetary and
manpower resources away from other higher priority
Clean Air Act projects to conduct a remand rulemaking
addressing issues that the Agency thought were settled
by the D.C. Circuit five years ago. In that rulemaking,
because of the court’s interpretation of § 123, EPA will
need to develop revised § 123 rules that require case-by-
case demonstrations of GEP height and establish a multi-
layer grandfathering scheme with different GEP rules
applicable to different sources, depending upon the type
and age of their stack. |
Adoption of a case-by-case demonstration requirement
for GEP formula credit with a multi-layer GEP grand-
fathering scheme will vastly complicate implementation
of $123. Indeed, if case-specific demonstrations were
required for all post-1970 replacement stacks, implemen-
tation of the program could span another decade due to
the limited number of wind tunnel facilities capable of
performing such demonstrations. Under the approach de-
manded by the D.C. Circuit, states will be forced to di-
vert their own scarce resources to revise their § 110
plans for a third time, in order to carry out the court’s
latest view of how § 123 should be implemented.
Finally, costs of the revised § 123 program could be
enormous for regulated industries. These industries since
1973 have made investments and corporate plans in re-
liance upon EPA statements that dispersion credit asso-
ciated with 2.5H (or H + 1.5L) GEP formula stack
height is acceptable. As a result of the D.C. Circuit’s
decision, these industries could be forced to conduct dem-
onstrations for their sources, collectively costing millions
of dollars, and to forego past investments and change
corporate plans, at a cost of many more millions of
dollars. Secondary costs to society, such as unemployment
26
of coal miners and increased cost of electricity and con-
sumer products, will also be significant.
In short, a provision that Congress in 1977 intended
only to affirm EPA’s implementation of the Act since
1973 has been transformed by the D.C. Circuit into one
of the most complex and expensive programs under the
Act. This Court should remind the D.C. Circuit of its
proper role in these disputes, and prevent that court from
imposing its view of § 123 upon the Agency.
CONCLUSION
For the foregoing reasons, this petition for a writ of
certiorari to the United States Court of Appeals for the
D.C. Circuit should be granted.
Respectfully submitted,
Davip C. BRANAND HENRY V. NICKEL
1130 17th Street, N.W. (Counsel of Record)
Washington, D.C. 20036 F. WILLIAM BROWNELL
(202) 463-2643 MEL S. SCHULZE
Counsel for Petitioner HUNTON & WILLIAMS
National Coal Association 2000 Pennsylvania Ave., N.W.
Suite 9000
Washington, D.C. 20006
(202) 955-1500
Counsel for Petitioners
July 12, 1988 Alabama Power Co., et al.
SUPPLEMENTAL
APPENDIX
SA-1
SUPPLEMENTAL APPENDIX
PARENT COMPANIES, SUBSIDIARIES, AND
AFFILIATES OF INDIVIDUAL
ELECTRIC UTILITIES
Alabama Power Company
(subsidiary of The Southern Company)
subsidiaries :
Alabama Property Company
Columbia Fuels, Inc.
affiliate:
Southern Electric Generating Company
Appalachian Power Company
(controlled by American Electric Power Company, Inc.)
subsidiaries:
Central Appalachian Coal Company
Central Coal Company
Central Operating Company
Kanawha Valley Power Company
Southern Appalachian Coal Company
West Virginia Power Company
Cedar Coal Company
Baltimore Gas and Electric Company
subsidiaries:
Safe Harbor Water Power Corp.
Constellation Holdings, Inc.
subsidiaries:
Constellation Biogas, Inc.
Constellation Investments, Inc.
Constellation Properties, Inc.
SA-2
Boston Edison Company
Carolina Power & Light Company
subsidiaries:
Capitan Corporation
Carolina Power & Light Finance, N.V.
affiliate :
Carolinas-Virginia Nuclear Power Associates,
Ine.
Central and South West Corporation
subsidiaries:
Central Power and Light Company
Public Service Company of Oklahoma
subsidiary :
Ash Creek Mining Company
Transok, Inc.
Southwestern Electric Power Company
West Texas Utilities Company
Central and South West Services, Inc.
CSW Financial, Inc.
CSW Energy, Inc.
CSW Leasing, Inc.
CSW Credit, Inc.
Central Hudson Gas and Electric Corporation
subsidiaries :
Phoenix Development Company, Inc.
Greene Point Development Corporation
Central Hudson Enterprises Corp.
CH Resources, Inc.
CH Cogeneration, Inc.
SA-3
Central Illinois Light Company
(a subsidiary of CILCORP, Inc.)
subsidiaries:
CILCO Exploration and Dev. Co.
CILCO Energy Corporation
Central Illinois Public Service Company
affiliate:
Electric Energy, Inc.
The Cincinnati Gas and Electric Company
subsidiaries:
Union Light, Heat and Power Co.
West Harrison Gas & Electric Co.
Miami Power Corp.
Lawrenceburg Gas Co.
Lawrenceburg Gas Transmission Corp.
Tri-State Improvement Co.
YGK, Ince.
Cleveland Electric Illuminating Company
(controlled by Centerior Energy Corporation)
subsidiaries :
CCO Company
Ceico Company
Dynamic Energy Ventures
Columbus Southern Power Company
(controlled by American Electric Power Company, Inc.)
subsidiaries:
_ Colomet, Inc.
Simco, Ine.
Conesville Coal Preparation Co.
Commonwealth Edison Company
subsidiaries:
Commonwealth Edison Co. of Indiana, Inc.
Chicago and Illinois Midland Railway Co.
—
SA-4
Cotter Corp.
Commonwealth Research Corp.
Edison Development Canada, Inc.
Edison Development Co.
Concomber, Ltd.
Consolidated Edison Company of New York, Inc.
Ok eS Oey CEE Ee SR Oty,
Consumers Power Company
subsidiaries:
Michigan Gas Storage Company
Northern Michigan Exploration Company
Selective Collection Services, Inc.
Utility Systems, Inc.
Huron Hydrocarbons, Inc.
The Dayton Power and Light Company
(controlled by DPL, Inc.)
subsidiaries:
DP&L Community Urban Redevelopment Corp.
Miami Valley Development Company
Delmarva Power & Light Company
subsidiaries:
Delmarva Industries, Inc.
Delmarva Services Company
Delmarva Capital Investments, Inc.
subsidiaries:
DCI I, Ine.
DCI II, Ine.
Delmarva Capital Technology, Inc.
Delmarva Capitol Realty Company
The Detroit Edison Company
subsidiaries:
Edison Illuminating Company
Midwest Energy Resources Company
SA-5
Washtenaw Energy Corp,
St. Clair Energy Corp.
SYNDECO, Inc.
Duke Power Company
subsidiaries:
Mill-Power Supply Co.
Crescent Land & Timber Corp.
Wateree Power Co.*
Catawba Manufacturing and Electric Power
Co.*
Western Carolina Power Co.”
Caldwell Power Co.*
Southern Power Co.*
Greenville Gas and Electric Light
and Power Co.*
Church Street Capital Corp.
Duke Engineering and Services
Florida Power Corporation
(controlled by Florida Progress Corporation)
Florida Power & Light Company
(wholly-owned subsidiary of FPL Group, Inc.)
subsidiaries:
Land Resources Investment Company
FPL QualTec, Inc.
Alandco, Ine.
Georgia Power Company
(subsidiary of The Southern Company)
subsidiary:
Piedmont Forrest Co,
* Inactive
SA-6
affiliate:
Southern Electric Generating Company
Gulf Power Company
(subsidiary of The Southern Company)
Illinois Power Company
subsidiaries:
IP Ine.
IPF Co., N.V.
Illinois Power Fuel Company
affiliate:
Electric Energy, Inc.
Indiana Michigan Power Company
(controlled by American Electric Power Company, Inc.)
subsidiaries:
Price River Coal Company
Blackhawk Coal Company
Indianapolis Power & Light Company
(controlled by IPALCO Enterprises, Inc.)
Iowa-Illinois Gas and Electric Company
subsidiary:
Iowa-Illinois Energy Co.
Iowa Public Service Company
(controlled by Midwest Energy Co.)
Kansas City Power and Light Company
Kentucky Power Company
(controlled by American Electric Power Company, Inc.)
NP winks wri
a nga leat a! a Sh ti
wibnalicds rate ~
SA-7
Kentucky Utilities Company
subsidiary:
Old Dominion Power Company
affiliate:
Electric Energy, Inc.
Madison Gas and Electric Company
subsidiaries:
MG&E Nuclear Fuel Inc.
MAGAEL Ince.
MAGAEL Material Resources, Inc.
MAGAEL Communications, Ine.
Waters and Associates
Central Wisconsin Development Corp.
Mississippi Power Company
(subsidiary of The Southern Company)
Monongahela Power Company
(controlled by Allegheny Power System, Inc.)
affiliate:
Allegheny Generating Co.
Montaup Electric Company
(affiliated with Eastern Utilities Associates)
New England Power Company
(controlled by New England Electric System)
subsidiaries:
Massachusetts Electric Company
Narragansett Electric Company
Granite State Electric Company
SA-8
Northern Indiana Public Service Company
subsidiaries: .
Shore Line Shops, Incorporated
NIPSCO Exploration Co.
NIPSCO Fuel Co., Ince.
NIPSCO Energy Services, Inc.
Ohio Edison Company
subsidiaries:
Pennsylvania Power Co.
Ohio Edison Finance, N.A.
Ohio Power Company
(controlled by American Electric Power Company, Inc.)
subsidiaries:
Central Coal Company
Central Ohio Coal Company
Central Operating Company
Southern Ohio Coal Company
Cardinal Operating Company
Windsor Coal Company
Ohio Valley Electric Corporation
subsidiary:
Indiana-Kentucky Electric Corp.
Oklahoma Gas and Electric Company
affiliate:
Arklahoma Corporation
Pacific Gas & Electric Company
subsidiaries:
Natural Gas Corp. of California
Sine tern ntn. dateg
pe deh Linn ne So ee RES TE ee
eT ee
SA-9
subsidiary:
NGC Production Company
Gas Lines, Inc.
Alberta & Southern Gas Company, Ltd.
Calaska Energy Company
Standard Pacific Gas Lines, Inc.
Pacific Gas Transmission Company
affiliates:
ANGUS Biotech
ANGUS Chemical Company
ANGUS Petroleum Corp.
Alberta Natural Gas Company, Ltd.
affiliates:
ANGUS Biotech
ANGUS Chemical Co.
ANGUS Petroleum Corp.
Foothills Pipelines
subsidiaries:
Pacific Transmission Supply Co.
Rocky Mountain Gas Transmission Co.
Pacific Gas & Electric Gas Supply Co.
JWP Land Company
Pacific Gas and Electric Finance Company, N.V.
Alberta Natural Gas Company Ltd.
Pacific Conservation Services Company
Pacific Horizon Enterprises, Inc.
subsidiary:
Pacific Energy Services Co.
Pennsylvania Electric Company
(subsidiary of General Public Utilities Corp. )
subsidiaries:
Nineveh Water Co.
Waverly Electric Light & Power Co.
SA-10
Pennsylvania Power & Light Co.
subsidiaries :
Pennsylvania Coal Resources Corp.
subsidiaries:
Brush Valley Coal Corp.*
Greene Manor Coal Company
Greene Hill Coal Company
Pemico Incorporated *
Pennsylvania Mines Corp.
subsidiaries:
Tunnelton Mining Co.
Rushton Mining Co.
CEP Group, Ine.
subsidiary:
Hanover Development Corp.
Interstate Energy Company
Safe Harbor Water Power Corp.
Realty Company of Pennsylvania
subsidiaries:
BDW Corp.
LCA Leasing Corp.
Lady Jane Collieries, Inc.
The Potomac Edison Company
(controlled by Allegheny Power System, Inc.)
subsidiaries:
Allegheny Generating Company
Allegheny Pittsburgh Coal Company
* Inactive
SA-11
Potomac Electric Power Company
subsidiaries:
PEPCO Enterprises, Inc.
Potomac Capital Investment Corp.
Public Service Company of-Indiana, Inc.
Public Service Electric and Gas Company
(controlled by Public Service Enterprise Group, Inc.)
subsidiaries:
PSE&G Research Corp.
Mulberry Street Urban Renewal Corp.
Salt River Project
Southern California Edison Company
subsidiaries:
Associated Southern Investment Co.
Energy Services Inc.
Southern Surplus Realty Company
Calabasas Park Company, Inc.
Mono Power Company
Bear Creek Uranium Company
Associated Southern Engineering Co.
Mono Green Mountain Co.
S.C.E. Capital Co.
Mission Energy Co.
Mission Land Co.
Northern Cimarron Resources Co.
Mission Financial Management Co.
Tampa Electric Company
(controlled by TECO Energy, Inc.)
Toledo Edison Company
(controlled by Centerior Energy Corporation)
SA-12
Tucson Electric Power Company )
subsidiaries:
Valencia Energy Co. )
Escavada Leasing Co.
Tucson Resources, Inc.
Tusconel Inc.
Sierrita Resources, Inc.
San Carlos Resources, Inc.
Union Electric Company
subsidiary:
Union Colliery Company
affiliate:
Electric Energy, Inc.
Ok ies ete Pee
Virginia Electric and Power Company
(controlled by Dominion Resources, Inc. )
West Penn Power Company
(controlled by Allegheny Power System, Inc.)
subsidiaries:
- a ee a ee
Allegheny Generating Company
Allegheny Pittsburgh Coal Company
West Virginia Power & Transmission Co.
subsidiary:
West Penn West Virginia
Water Power Co.
Wisconsin Electric Power Company
(controlled by Wisconsin Energy Corporation)
Wisconsin Power and Light Company
subsidiaries:
South Beloit Water, Gas and Electric Co.
Wisconsin Power and Light Nuclear Fuel, Inc.
SA-13
NUFUS Resources, Inc.
Residuals Management Technology, Inc.
ENSERY\V, Inc.
REAC, Ine.
WP&L Holdings, Inc.
WP&L Communications, Inc.
Wisconsin Public Service Corporation
affiliates:
Wisconsin River Power Company
Wisconsin Valley Improvement Company
Delores Bench General Partner, Inc.
WPS Development, Inc.
WPS Communications, Inc.
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.