On May 15th, the U.S. Supreme Court granted Environmental Defense's request to review the merits of the Fourth Circuit's June 2005 decision weakening the Clean Air Act's "new source review" rules. The Court's review of the case, Environmental Defense, et al. v. Duke Energy Corporation (No. 05-848), represents only the third environmental law case in 35 years to be taken up by the high Court where environmental groups alone sought review. The "new source review" program requires industrial facilities to modernize air pollution controls when they expand operations and increase pollution. It 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 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.
"We're very pleased that the Court agreed to review the Duke Energy decision, which rests on a flawed interpretation of the Clean Air Act, and which industry has been citing in numerous other cases in an effort to undermine essential pollution controls applicable to some of the nation's largest sources of air pollution" said attorney Sean Donahue who is the lead attorney in the case.
"Over 160 million Americans, more than half of the country, live in communities out of compliance with the nation's health standards and today the Supreme Court took a big step toward aiding those communities in their efforts to restore healthy air," said Environmental Defense attorney Vickie Patton.
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 an actual overall increases in air pollution.
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