Environmental Defense v. Duke Energy Corporation

549 U.S. 561 (2007)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

In the 1970s, Congress added two air pollution control schemes to the Clean Air Act (Act): New Source Performance Standards (NSPS) and Prevention of Significant Deterioration (PSD), each of which covers modified, as well as new, stationary sources of air pollution. Despite their definitional identity, the EPA regulations interpret 'modification' one way for NSPS but differently for PSD. The NSPS regulations require a source to use the best available pollution-limiting technology when a modification would increase the discharge of pollutants measured in kilograms per hour. PSD regulations require a permit for a modification only when it is a 'major' one, and only when it would increase the actual annual emission of a pollutant above the actual average for the two prior years. D runs 30 coal-fired electric generating units at eight plants in North and South Carolina. Between 1988 and 2000, D replaced or redesigned 29 tube assemblies in order to extend the life of the units and allow them to run longer each day. The United States filed this action claiming that D violated the PSD provisions by doing this work without permits. Ps intervened and filed a complaint charging similar violations. D moved for summary judgment because none of the projects was a 'major modification' requiring a PSD permit because none increased hourly rates of emissions. The District Court agreed with D. It held that a PSD 'major modification' can occur 'only if the project increases the hourly rate of emissions.' The Court of Appeals for the Fourth Circuit affirmed. As the Court of Appeals saw it, case law establishes an 'effectively irrebuttable' presumption that PSD regulations must contain the same conditions for a 'modification' as the NSPS regulations, including an increase in the hourly rate of emissions. Ps appealed. Ps say that the Court of Appeals was rewriting the PSD regulations in a way neither required by the Act nor consistent with their own text.