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Supreme Court RoundUP: Pivotal Cases for the Clean Air Act

How greenhouse gases and Best Available Control Technology could shape the regulatory landscape—and the environment.

Fortnightly Magazine - December 2006

NSPS requires that EPA adopt identical regulatory tests for determining what is an “emissions increase” for the two programs. 34 “Congress’s repeated use of an ambiguous term,” the government argues, “reflects a repeated delegation, not a command of parity.” 35, 36

Duke reiterates the arguments it advanced to the Fourth Circuit that EPA historically intended its regulations to apply a consistent test. Specifically, Duke argues under the “plain language” of both NSPS and NSR, a project is a “modification” only if it causes an increase in a unit’s basic emissions capacity, as measured by its hourly emissions rate, and that EPA engaged in an erroneous “reinterpretation” of the rules that is inconsistent with Congress’ intent. 37


Before deciding who is right about the meaning of EPA’s definitions of “modification,” the Supreme Court first must consider whether the Fourth Circuit properly had authority to consider Congress’ intent in the context on an enforcement action. EPA argues that the Fourth Circuit (and the Supreme Court in the Duke Energy case) does not have the power to consider that issue, because the CAA requires that it be considered only in a challenge to the validity of the rule itself, such as occurred in the New York case. 38

EPA bases its claim that the lower courts lacked jurisdiction 39 on Section 307 of the CAA, which provides that any petition for review of regulations promulgated under the CAA must be filed in the D.C. Circuit within 60 days of notice in the Federal Register .40 Section 307 further specifies that regulations are not “subject to judicial review in civil or criminal proceedings for enforcement” if such review “could have been obtained” under the first provision. 41 EPA contends that although the Fourth Circuit framed its decision as an “interpretation” of NSR regulations, the ruling actually affected the validity of the regulation and therefore “could have been” heard by the D.C. Circuit. 42 Moreover, the EPA argues that the express purpose of the jurisdictional provision is to prevent the inconsistent results that follow from Duke Energy and New York. 43

In contrast, Duke claims that, in this case, there was no EPA action that could have been resolved in a challenge to the rule because Duke was objecting only to EPA’s interpretation of the NSR rules, not to the validity of the rules themselves. 44 Duke further claims that it could not have challenged EPA’s enforcement position facially at the time the rules were issued because EPA did not then interpret the rules then the way it does now. 45 Rather, Duke argues that EPA originally interpreted the emissions test for PSD to require an hourly emissions rate increase, just like the NSPS emissions test, and only at the time of the enforcement cases in the late 1990s did EPA announce its new position. 46 Indeed, Duke argues, had they filed such a petition challenging the rules in 1980, it would have been dismissed as “unripe.” 47 As a result, Duke urges, EPA is “essentially … seeking a ruling that its enforcement position is