On August 17th, the Seventh Circuit Court rejected the flawed Fourth Circuit's June 2005 decision weakening the Clean Air Act's "new source review" rules that require industrial facilities to modernize air pollution controls when they expand operations and increase pollution. The ruling in the government's "new source review" enforcement case against Cinergy firmly and explicitly rejects the flawed Fourth Circuit opinion now pending appeal in the U.S. Supreme Court's review of the case, Environmental Defense, et al. v. Duke Energy Corporation (No. 05-848). The case is being briefed this summer and the High Court just established November 1st as the oral argument date in the Duke case. A corporate merger of Duke and Cinergy was approved in April.
"Over 160 million Americans, more than half of the country, live in communities out of compliance with the nation's health standards and today an important federal court of appeals took a big step toward aiding those communities in their efforts to restore healthy air," said Vickie Patton, a senior attorney for the Climate and Air Program at Environmental Defense and a former attorney in the General Counsel's office of the U.S. Environmental Protection Agency (EPA). "We urge EPA not to adopt more exemptions to the Clean Air Act's new source review program and to effectively enforce the program that has protected Americans from industrial air pollution for over a quarter century."
"This pivotal decision by one of the most influential federal court of appeals in the nation sends a powerful signal that it is time to address the serious human health and environmental impacts of coal-fired power plants," added Patton. "The court's strong, clear decision also puts its considerable weight behind a protective interpretation of the Clean Air Act's clean up requirements for coal plants at the same time that the Supreme Court is considering a major case presenting these very questions."
The "new source review" program has been the subject of repeated, controversial rollbacks by the Bush administration. Most recently, on March 17, 2006, the federal court of appeals in Washington, D.C. overturned U.S. Environmental Protection Agency exemptions to the new source review program that the court ascribed to EPA's flawed "Humpty Dumpty" world-view.
Environmental Defense asked the United States Supreme Court to review the Fourth Circuit case after the federal government sharply reversed course by declining to further pursue its Clean Air Act enforcement matter against Duke Energy, opposed our request for review by the high Court, and embarked on a national rulemaking initiative to codify the flawed Fourth Circuit exemptions.
In 2000, the United States filed a Clean Air Act enforcement action against Duke Energy in federal district court in North Carolina alleging the electric utility expanded operations at 30 coal-fired electric generating units (eight power plants) in North Carolina and South Carolina resulting in significant increases in particulate- and smog-forming pollution without updating pollution controls. The federal district court for the middle district of North Carolina granted summary judgment for Duke Energy and a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit unanimously affirmed the lower court's ruling on June 15, 2005. On June 24, 2005, only nine days later, the U.S. Court of Appeals in Washington, D.C. reached a contrary result in reviewing industry challenges to national new source review rules. The Fourth Circuit subsequently denied the United States' and Environmental Defense's request for rehearing and rehearing en banc.
Two other petitioners joined in the case including the North Carolina Sierra Club and North Carolina Public Interest Regulatory Group. The Southern Environmental Law Center is also on the briefs for the petitioners.
Environmental Defense and the co-petitioners presented two issues to the high Court:
- Whether the Fourth Circuit impermissibly allowed Duke Energy to collaterally attack the legality of national rules that may be reviewed solely in the U.S. Court of Appeal in Washington, D.C.
- Whether the Clean Air Act requires EPA to interpret the term "modification" in the new source review program to encompass changes that result in actual overall increases in air pollution.
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