Environmental Defense v. Duke Energy Corp.
The United States brought an enforcement action on the request of the Environmental Protection Agency (EPA) against Duke Energy Corp., complaining of a violation of the Prevention of Significant Deterioration (PSD) provision (42 U.S.C. §§ 7470—92) of the Clean Air Act. Several parties, including Environmental Defense, intervened in the case on the side of the United States. After the Fourth Circuit ruled in favor of Duke Enerty, Environmental Defense sought certiorari in the Supreme Court.
Duke Energy made twenty-nine modifications of its coal-fired power generation units between 1988 and 2000, all without obtaining permits. These modifications did nothing to increase the hourly rate of emissions, but since they allowed the plant to run for more hours each day, they increased the total emissions per day. Under the PSD provision, a power company must obtain a permit every time it makes a physical change that leads to a significant net emissions increase. However, the EPA also disseminated a regulation that explicitly excludes an increase in the hours of operation from qualifying as a significant net emissions increase in 40 C.F.R. § 51.166(b)(2)(iii)(f).
The United States argued in district court that the EPA interpreted the PSD provision to allow an increase the hours of operation only if the increase did not require any construction. The district court granted Duke Energy’s motion for summary judgment, holding that the court could not defer to the EPA’s interpretation because it was clearly contrary to its earlier interpretations. Also, the PSD provision explicitly included the definition of modification from the New Source Performance Standards (NSPS) provision (42 U.S.C. § 7411) of the Clean Air Act, which was also contrary the EPA’s interpretation.
The United States Court of Appeals for the Fourth Circuit affirmed, holding that the EPA must interpret the definition of "modification" the same way in the PSD and NSPS, since the provisions use the same definition. Therefore, the EPA’s previous interpretation of the NSPS provision that would allow the construction without a permit must also apply to the PSD provision.
Environmental Defense appealed the Fourth Circuit’s ruling to the United States Supreme Court, adding the jurisdictional complaint that the Fourth Circuit improperly heard the case. 42 U.S.C. § 7607(b) requires that all appeals of determinations about air quality that have a national scope be filed in the United States Court of Appeals for the District of Columbia Circuit.
(1) Whether the court of appeals lacked jurisdiction by virtue of Section 307(b) of the Clean Air Act, 42 U.S.C. 7607(b), which provides that nationally applicable regulations that the EPA issues to implement the Act may be reviewed only through properly filed petitions for review, not in enforcement actions?
(2) Whether the Clean Air Act requires the EPA to interpret the statutory term "modification" consistently in its Prevention of Significant Deterioration (PSD) provisions and New Source Performance Standards (NSPS) regulations?