U.S. v. Duke Energy Corp., 04-1763.
| Decision Date | 15 June 2005 |
| Docket Number | No. 04-1763.,04-1763. |
| Citation | 411 F.3d 539 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, Environmental Defense; North Carolina Sierra Club; North Carolina Public Interest Research Group Citizen Lobby/Education Fund, Intervenors/Plaintiffs-Appellants, v. DUKE ENERGY CORPORATION, Defendant-Appellee. American Lung Association; State of New York; Connecticut; Illinois; Maryland; New Hampshire; Pennsylvania; Washington, DC; Delaware; Maine; Massachusetts; New Jersey; Vermont, Amici Supporting Appellant, Manufacturers Association Work Group; Joe L. Barton, U.S. Representative; South Dakota; State of Alabama; State of Kansas; State of Nebraska; State of North Dakota; Tennessee Valley Authority; Law Professors, Jonathan Adler, Ronald A. Cass, John C. Eastman, Ernest Gellhorn, James Huffman, Donald J. Kochan, Gary Marchant, Roger Meiners, Andrew Morriss, Amici Supporting Appellee, and Utility Air Regulatory Group, Movant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Todd Sunhwae Kim, United States Department of Justice, Environment & Natural Resources Division, Washington, DC, for the United States. James Blanding Holman, IV, Southern Environmental Law Center, Chapel Hill, North Carolina, for Appellants Environmental Defense, North Carolina Sierra Club, and North Carolina Public Interest Research Group Citizen Lobby/Education Fund. F. William Brownell, Hunton & Williams, Washington, DC, for Appellee. ON BRIEF: Thomas L. Sansonetti, Assistant Attorney General, Jason A. Dunn, John A. Bryson, United States Department of Justice, Environment & Natural Resources Division, Washington, DC; Alan Dion, Monica Derbes Gibson, Environmental Protection Agency, Washington, D.C., for the United States. Jeffrey M. Gleason, Southern Environmental Law Center, Charlottesville, Virginia, for Appellants Environmental Defense, North Carolina Sierra Club, and North Carolina Public Interest Research Group Citizen Lobby/Education Fund. Garry S. Rice, Duke Energy Corporation, Charlotte, North Carolina; Dean M. Moesser, Duke Energy Corporation, Houston, Texas; T. Thomas Cottingham, III, Nash E. Long, III, Hunton & Williams, L.L.P., Charlotte, North Carolina; Mark B. Bierbower, Henry V. Nickel, Makram B. Jaber, Hunton & Williams, L.L.P., Washington, DC, for Appellee. Alan Birnbaum, Clean Air Task Force, Boston, Massachusetts, for Amicus Curiae, American Lung Association, Supporting Appellant. Eliot Spitzer, Attorney General of New York, Caitlin J. Halligan, Solicitor General, Daniel Smirlock, Deputy Solicitor General, Peter Lehner, Assistant
Attorney General, J. Jared Snyder, Assistant Attorney General, Scott Bassinson, Assistant Attorney General, Environmental Protection Bureau, Albany, New York, for Amicus Curiae, State of New York, Supporting Appellant. Richard Blumenthal, Attorney General of Connecticut, Hartford, Connecticut, for Amicus Curiae, Connecticut, Supporting Appellant. Lisa Madigan, Attorney General of Illinois, Chicago, Illinois, for Amicus Curiae, Illinois, Supporting Appellant. J. Joseph Curran, Jr., Attorney General of Maryland, Baltimore, Maryland, for Amicus Curiae, Maryland, Supporting Appellant. Kelly A. Ayotte, Attorney General of New Hampshire, Concord, New Hampshire, for Amicus Curiae, New Hampshire, Supporting Appellant. Susan Shinkman, Chief, Pennsylvania, Department of Environmental Protection, Harrisburg, Pennsylvania, for Amicus Curiae, Pennsylvania, Supporting Appellant. Robert J. Spagnoletti, Attorney General of District of Columbia, Washington, DC, for Amicus Curiae, Washington, DC, Supporting Appellant. M. Jane Brady, Attorney General of Delaware, Dover, Delaware, for Amicus Curiae, Delaware, Supporting Appellant. G. Steven Rowe, Attorney General of Maine, Augusta, Maine, for Amicus Curiae, Maine, Supporting Appellant. Thomas F. Reilly, Attorney General of Massachusetts, Boston, Massachusetts, for Amicus Curiae, Massachusetts, Supporting Appellant. Peter C. Harvey, Attorney General of New Jersey, Trenton, New Jersey, for Amicus Curiae, New Jersey, Supporting Appellant. William H. Sorrell, Attorney General of Vermont, Montpelier, Vermont, for Amicus Curiae, Vermont, Supporting Appellant. Charles H. Knauss, Robert V. Zener, Swidler, Berlin, Shereff, Friedman, L.L.P., Washington, DC, for Amicus Curiae, Manufacturers Association Work Group, Supporting Appellee. C. Boyden Gray, Wilmer, Cutler, Pickering, Hale And Dorr, L.L.P., Washington, DC, for Amicus Curiae, U.S. Representative Joe L. Barton, Supporting Appellee. Lawrence E. Long, Attorney General of the State of South Dakota, Roxanne Giedd, Deputy Attorney General, Pierre, South Dakota, for Amicus Curiae, South Dakota, Supporting Appellee. Troy King, Attorney General of the State of Alabama, Montgomery, Alabama, for Amicus Curiae, State of Alabama, Supporting Appellee. Phill Kline, Attorney General of the State of Kansas, David W. Davies, Deputy Attorney General, Topeka, Kansas, for Amicus Curiae, State of Kansas, Supporting Appellee. Joe Bruning, Attorney General of the State of Nebraska, Jodi M. Fenner, Assistant Attorney General, Lincoln, Nebraska, for Amicus Curiae, State of Nebraska, Supporting Appellee. Wayne Stenehjem, Attorney General of the State of North Dakota, Charles M. Carvell, Assistant Attorney General, Lyle G. Witham, Assistant Attorney General, Dean J. Haas, Assistant Attorney General, Bismarck, North Dakota, for Amicus Curiae, State of North Dakota, Supporting Appellee. Maureen H. Dunn, General, Harriet A. Cooper, Assistant General Counsel, Gregory R. Signer, Senior Environmental, Frank H. Lancaster, Tennessee Valley Authority, Office of the General, Knoxville, Tennessee, for Amicus Curiae, Tennessee Valley Authority, Supporting Appellee. David B. Rivkin, Jr., Lee A. Casey, Darin R. Bartram, Baker & Hostetler, L.L.P., Washington, DC, for Amici Curiae, Law Professors, Jonathan Adler, Ronald A. Cass, John C. Eastman, Ernest Gellhorn, James Huffman, Donald J. Kochan, Gary Marchant, Roger Meiners, Andrew Morriss, Supporting Appellee.
Before LUTTIG and MOTZ, Circuit Judges, and Samuel G. WILSON, United States District Judge for the Western District of Virginia, sitting by designation.
Affirmed by published opinion. Judge MOTZ wrote the opinion, in which Judge LUTTIG and Judge WILSON joined.
The United States brought this enforcement action against Duke Energy Corporation, which provides North Carolina and South Carolina with electricity generated from eight plants located throughout the two states. The United States maintains that Duke Energy on numerous occasions modified these plants without first obtaining appropriate permits in violation of the Clean Air Act. 42 U.S.C. §§ 7401 et seq. (2000). The district court granted summary judgment to Duke Energy. See United States v. Duke Energy Corp., 278 F.Supp.2d 619 (M.D.N.C.2003). We affirm, albeit for somewhat different reasons than those relied on by the district court.
The Clean Air Act is a complex statute supported by an elaborate regulatory scheme; both have a complicated history. This case involves two different, but complementary provisions of the Act: the New Source Performance Standards ("NSPS") provisions, 42 U.S.C. § 7411, and the Prevention of Significant Deterioration ("PSD") provisions, 42 U.S.C. §§ 7470-92.
In order to "protect and enhance the quality of the Nation's air resources" and "promote the public health and welfare," 42 U.S.C. § 7401(b)(1), the Clean Air Amendments of 1970 directed the Environmental Protection Agency ("EPA") to devise National Ambient Air Quality Standards establishing the maximum concentrations of certain air pollutants allowable in each region of the United States. 42 U.S.C. § 7409. The Act then directed each State to design a State Implementation Plan to effect compliance with its air quality standards. 42 U.S.C. § 7410.
To help attain and thereafter maintain these air quality standards, the 1970 amendments enacted the NSPS provisions, which required the EPA to promulgate standards regulating emissions from both newly constructed and modified sources of pollution at power plants. 42 U.S.C. § 7411. Congress defined "modification" in the NSPS provisions as "any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted." 42 U.S.C. § 7411(a)(4).
Since 1971, the EPA has promulgated NSPS regulations that define "modification" in virtually the same words as the statute. See, e.g., 36 Fed. Reg. 24,876, 24,877 (Dec. 23, 1971); 40 C.F.R. § 60.2 (1976); 40 C.F.R. § 60.2 (2004). In 1975, the EPA added a regulation elaborating on this definition and further defining "modification" by reference to an increase in the hourly emission rate: a modification includes "any physical or operational change to an existing facility which results in an increase in the emission rate to the atmosphere of any [regulated] pollutant," measured not in tons per year, but in kilograms per hour. 40 Fed. Reg. 58,416, 58,419 (Dec. 16, 1975) (codified at 40 C.F.R. § 60.14(a) & (b)). Modified equipment becomes subject to the NSPS's "technology-based" standards, Alabama Power Co. v. Costle, 636 F.2d 323, 346 (D.C.Cir.1979), which mandate the installation of the "best demonstrated pollution control technology." Potomac Elec. Power Co. v. EPA, 650 F.2d 509, 518 (4th Cir.1981) [hereinafter PEPCo].
The NSPS program was not entirely successful. See Wisconsin Elec. Power Co. v. Reilly, 893 F.2d 901, 904 (7th Cir.1990). In 1972, the United States District Court for the District of Columbia issued a preliminary injunction directing the EPA to promulgate regulations to supplement the NSPS program and protect air quality from deterioration in areas that had met or exceeded the relevant ambient standards. See Sierra Club v. Ruckelshaus...
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