Environmental Defense v. Duke Energy Corporation

167 L. Ed. 2d 295, 127 S. Ct. 1423, 20 Fla. L. Weekly Fed. S 123, 549 U.S. 561, 63 ERC (BNA) 2088, 2007 U.S. LEXIS 3784, 37 Envtl. L. Rep. (Envtl. Law Inst.) 20076, 75 U.S.L.W. 4167
CourtSupreme Court of the United States
DecidedApril 2, 2007
Docket05-848
StatusPublished
Cited by189 cases

This text of 167 L. Ed. 2d 295 (Environmental Defense v. Duke Energy Corporation) is published on Counsel Stack Legal Research, covering Supreme Court of the United States primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Environmental Defense v. Duke Energy Corporation, 167 L. Ed. 2d 295, 127 S. Ct. 1423, 20 Fla. L. Weekly Fed. S 123, 549 U.S. 561, 63 ERC (BNA) 2088, 2007 U.S. LEXIS 3784, 37 Envtl. L. Rep. (Envtl. Law Inst.) 20076, 75 U.S.L.W. 4167 (U.S. 2007).

Opinions

[565]*565Justice Souter

delivered the opinion of the Court.

In the 1970s, Congress added two air pollution control schemes to the Clean Air Act: New Source Performance [566]*566Standards (NSPS) and Prevention of Significant Deterioration (PSD), each of them covering modified, as well as new, stationary sources of air pollution. The NSPS provisions define the term “modification,” 42 U. S. C. § 7411(a)(4), while the PSD provisions use that word “as defined in” NSPS, § 7479(2)(C). The Court of Appeals concluded that the statute requires the Environmental Protection Agency (EPA) to conform its PSD regulations on “modification” to their NSPS counterparts, and that EPA’s 1980 PSD regulations can be given this conforming construction. We hold that the Court of Appeals’s reading of the 1980 PSD regulations, intended to align them with NSPS, was inconsistent with their terms and effectively invalidated them; any such result must be shown to comport with the Act’s restrictions on judicial review of EPA regulations for validity.

I

The Clean Air Amendments of 1970, 84 Stat. 1676, broadened federal authority to combat air pollution, see Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 845-846 (1984), and directed EPA to devise National Ambient Air Quality Standards (NAAQS) limiting various pollutants, which the States were obliged to implement and enforce, 42 U. S. C. §§ 7409, 7410. The amendments dealing with NSPS authorized EPA to require operators of stationary sources of air pollutants to use the best technology for limiting pollution, Chevron, supra, at 846; see also 1 F. Grad, Environmental Law §2.03 [14], p. 2-356 [567]*567(2006), both in newly constructed sources and those undergoing “modification,” 42 U. S. C. § 7411(a)(2). Section 111(a) of the 1970 amendments defined this term within the NSPS scheme 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).

EPA’s 1975 regulations implementing NSPS provided generally that “any physical or operational change to an existing facility which results in an increase in the emission rate to the atmosphere of any pollutant to which a standard applies shall be considered a modification within the meaning of section 111.” 40 CFR §60.14(a) (1976). Especially significant here is the identification of an NSPS “modification” as a change that “increase^] . . . the emission rate,” which “shall be expressed as kg/hr of any pollutant discharged into the atmosphere. ” § 60.14(b).1

NSPS, however, did too little to “achiev[e] the ambitious goals of the 1970 Amendments,” R. Belden, Clean Air Act 7 (2001) (hereinafter Belden), and the Clean Air Act Amendments of 1977, 91 Stat. 685, included the PSD provisions, which aimed at giving added protection to air quality in certain parts of the country “notwithstanding attainment and [568]*568maintenance of” the NAAQS. 42 U. S. C. § 7470(1).2 The 1977 amendments required a PSD permit before a “major emitting facility” could be “constructed” in an area covered by the scheme. § 7475(a). As originally enacted, PSD applied only to newly constructed sources, but soon a technical amendment added the following subparagraph: “The term ‘construction’ when used in connection with any source or facility, includes the modification (as defined in section 111(a)) of any source or facility.” §14(a)(54), 91 Stat. 1402, 42 U. S. C. § 7479(2)(C); see also New York v. EPA, 413 F. 3d 3, 13 (CADC 2005) (per curiam). In other words, the “construction” requiring a PSD permit under the statute was made to include (though it was not limited to) a “modification” as defined in the statutory NSPS provisions.

In 1980, EPA issued PSD regulations,3 which “limited the application of [PSD] review” of modified sources to instances of “‘major’ modification,” Belden 46, defined as “any physical change in or change in the method of operation of a major stationary source that would result in a significant net emissions increase of any pollutant subject to regulation under the Act.” 40 CFR § 51.166(b)(2)(i) (1987). Further regulations in turn addressed various elements of this definition, three of which are to the point here. First, the regulations specified that an operational change consisting merely of “[a]n increase in the hours of operation or in the production rate” would not generally constitute a “physical change in or change in the method of operation.” § 51.166(b)(2)(iii)(/). For purposes of a PSD permit, that is, such an operational [569]*569change would not amount to a “modification” as the Act defines it. Second, the PSD regulations defined a “net emissions increase” as “[a]ny increase in actual emissions from a particular physical change or change in the method of operation,” net of other contemporaneous “increases and decreases in actual emissions at the source.” §51.166(b)(3)(i). “Actual emissions” were defined to “equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a two-year period which precedes the particular date and which is representative of normal source operation.” §51.166(b)(21)(ii). “[AJetual emissions” were to be “calculated using the unit’s actual operating hours [and] production rates.” Ibid. Third, the term “significant” was defined as “a rate of emissions that would equal or exceed” one or another enumerated threshold, each expressed in “tons per year.” § 51.166(b)(23)(i).

It would be bold to try to synthesize these statutory and regulatory provisions in a concise paragraph, but three points are relatively clear about the regime that covers this case:

(a) The Act defines modification of a stationary source of a pollutant as a physical change to it, or a change in the method of its operation, that increases the amount of a pollutant discharged or emits a new one.
(b) EPA’s NSPS regulations require a source to use the best available pollution-limiting technology only when a modification would increase the rate of discharge of pollutants measured in kilograms per hour.
(c) EPA’s 1980 PSD regulations require a permit for a modification (with the same statutory definition) 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.

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Cite This Page — Counsel Stack

Bluebook (online)
167 L. Ed. 2d 295, 127 S. Ct. 1423, 20 Fla. L. Weekly Fed. S 123, 549 U.S. 561, 63 ERC (BNA) 2088, 2007 U.S. LEXIS 3784, 37 Envtl. L. Rep. (Envtl. Law Inst.) 20076, 75 U.S.L.W. 4167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/environmental-defense-v-duke-energy-corporation-scotus-2007.