ADK adds Amicus Brief to a Supreme Court Petition in the Duke Case

For more information see Greenwire story below:

Air Pollution: Enviors, DOJ serve Surpreme Court with opening arguments in Duke case

By Darren Samuelsohn, Greenwire Senior Reporter, published on July 24, 2006

Environmentalists and the Justice Department presented arguments to the Supreme Court on Friday in a Clean Air Act enforcement case alleging violations at eight Duke Energy Corp. coal-fired power plants.

Filing separate opening briefs, attorneys for Environmental Defense and the Bush
administration urged the high court to overturn last summer's 4th U.S. Circuit
Court of Appeals' opinion in the Duke case. The Richmond, Va.-based court ruled
unanimously against the Clinton-era enforcement lawsuit on the grounds it relied
on an illegal interpretation of a more than 20-year old U.S. EPA permitting
regulation for existing power plants.

Environmental Defense and DOJ maintain the 4th Circuit overstepped its bounds
and insist only the U.S. Circuit Court of Appeals for the District of Columbia
is authorized to make such judgments on a Clean Air Act regulation. The two
plaintiffs told the Supreme Court that the D.C. Circuit last summer rejected an
industry-driven challenge to the very same EPA permitting regulations that the
4th Circuit hinged its opinion on.

According to DOJ and Environmental Defense, the Supreme Court's decision in the Duke case could have significant implications. If the 4th Circuit's opinion is
upheld, it could open the door to other federal courts besides the D.C. Circuit
ruling on the legality of EPA regulations. In some cases, such decisions could
come years after EPA finalizes a rule.

"It would be hard to imagine a more serious affront to the exclusive review role
Congress assigned to the D.C. Circuit," attorneys representing Environmental
Defense said.

Oral arguments in the Supreme Court are expected in late October or early
November, though no official date has been scheduled. Duke's reply briefs are
due Sept. 15, and a number of electric utilities and states are expected to
chime in with amicus briefs on behalf of the power company.

On Friday, amicus briefs for Environmental Defense came from nine different
sources. Lawyers for former EPA administrators Russell Train and Carol Browner
stressed the importance of the D.C. Circuit in reviewing regulations. New York
Attorney General Eliot Spitzer (D) presented the view of 16 states, including
California, Illinois, Maryland, New Mexico, Oregon and Pennsylvania.

Spitzer argued a Duke victory could undermine a sweeping enforcement campaign against the electric utility industry launched in the late 1990s out of the
Clinton administration and several states, including New York. Several power
companies are still defending themselves in court against the charges, and EPA
enforcement officials have prepared at least two dozen other cases that have
been held up due to resource constraints and internal policy debate.

And the associations representing state and local air pollution officials
insisted the 4th Circuit's opinion would slow emission cleanups across the
country, while also hindering economic expansion. Under the 4th Circuit's view,
aging power plants and other industries would be allowed to increase their
emissions as they operated more frequently after repair and without the addition
of modern pollution controls.

"The net effect is to expose the public to significantly more air pollution,"
attorneys for the State and Territorial Air Pollution Program Administrators and
the Association of Local Air Pollution Control Officials said.

Pete Sheffield, a Duke spokesman, said the electric utility stands behind its
long-standing defense in federal district court and the 4th Circuit against the
original enforcement allegations. "The U.S. District Court and 4th Circuit Court
of Appeals have both issued solid rulings, supporting the fact that Duke Energy
has for decades understood and lawfully complied with the requirements of the
Clean Air Act's NSR program," he said.

Sheffield added that Duke is spending $2.4 billion to install 25 scrubbers and
other environmental controls on its coal-fired power plants.

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