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Related Practices
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Environmental Defense, et al. v. Duke Energy Corporation

Beveridge & Diamond, P.C., May 15, 2006

The Supreme Court has granted certiorari in Environmental Defense v. Duke Energy Corp. In this case, the Court of Appeals for the Fourth Circuit ruled that the EPA's regulatory definition of emissions "increases" for purposes of the Prevention of Significant Deterioration (PSD) program violates the Clean Air Act because it differs from a regulatory definition EPA employs to measure emissions increases under another program under the Act, the New Source Performance Standards (NSPS). The questions presented are: (1) whether the Fourth Circuit’s decision constituted a violation of Section 307(b) of the Act, 42 U.S.C. 7607(b), which provides that national Clean Air Act regulations are subject to challenge "only" in the D.C. Circuit and "shall not be subject to judicial review" in enforcement proceedings; and (2) whether the Act's definition of "modification" renders unlawful EPA's longstanding regulatory test defining PSD "increases" only by reference to a cumulative measure of pollutants released annually, as opposed to considering increases on the basis of hourly emission rates. The case will be added to the Court's fall term calendar, which is scheduled to begin October 2, 2006.