"U.S. Supreme Court Decisions
in Flow Control and New Source
Review – Where Do They Lead
and Leave Us?"
Karen Aldridge Crawford
Nelson Mullins Riley & Scarborough LLP
Environmental Defense v. Duke Energy Corporation, 549 U.S. ___ (2007). (Duke Energy) FACTS: • Duke Energy coal plant modifications • Time period: 1988-2000 • State and federal agencies aware of work
• Generating stations were regulated by Clean Air Permits • Enforcement action brought in 2000
Duke Energy
Duke Energy
ISSUE AT HAND: • EPA interpretation of "modification"
– New Source Review (NSR)-Petitioners – Prevention of Significant Deterioration (PSD)Duke Energy
• Case History
– District Court (M.D.N.C)-summary judgment
for Duke Energy
– 4th Circuit-affirmed District Court
Duke Energy
PSD ANALYSIS • Use definition of "modification" from NSPS text • Require permit when net emissions increase
– Petitioners argue-on an annual basis – Duke argues-on a per hour basis
Duke Energy
NEW SOURCE REVIEW • Re quires permit when:
– Physical or operation change occurs that:
– Introduces new pollutant to environment or – Increases the emission rate to environment – Measured in kg/hr
Duke Energy
Supreme Court Decision
– 8 Justice majority, Thomas concurrence – Reversed and remanded 4th Circuit
Implications
– NSR definition of "modification" applies – EPA can interpret statutes in any "reasonable manner" – This is true even if EPA has consistently interpreted statute in other ways
United Haulers Association v. Oneida-
Herkimer Solid Waste Management
Authority, 550 U.S. ___ (2007). (United
Haulers)
FACTS: • Two NY Counties created Solid Waste Authority for Municipal Solid Waste (MSW) • Authority built and operated MSW facility • MSW charged "tipping fee" for use • Counties passed "flow-control" ordinance • Petitioners challenged Constitutionality "flowcontrol" on Interstate Commerce Clause
United Haulers
CASE HISTORY • District Court (1995)-found for petitioners
• 2nd Circuit-reversed and remanded • District Court-found for respondents (no interstate commerce burden) • 2nd Circuit (2006)-affirmed District Court
United Haulers
Prior Flow Control Decisions • Carbone (1994)-invalidated flow-control laws that benefited privately-run facilities
– Generally construed to hold nearly all flow-control laws invalid
• National Solid Wastes Management (2006)-6th Cir. Issued opinion directly contrary to 2nd Cir. Decision in United Haulers
United Haulers
SUPREME COURT DECISION
– 4 Justices provided opinion of the Court
– Justices Scalia and Thomas wrote separate concurrences – Justices Alito, Stevens, and Kennedy wrote dissent – "Both wings against the center"
United Haulers
OPINION OF THE COURT • Dormant Commerce Clause test • No discrimination if publicly run facility is the only beneficiary • Waste disposal is typically and traditionally a local government function
United Haulers
CONCURRENCES • Affirmed the decision of the Court • Rejected categorically the dormant Commerce Clause approach • Suggested this was an issue of legislative import
United Haulers
DISSENT • Held that no real difference existed
between this case and Carbone
• Dormant Commerce Clause should apply here • Flow-control ordinances should be overturned by the Court
United Haulers
IMPLICATIONS • Publicly (no private operation or ownership) run facilities can charge excess fees in conjunction with local ordinances • Flow-control laws are valid
– Issue of state jurisdiction – Congressional action is the only means of national invalidation
• Likely that jurisdictions will use "flow-control" as a way to ensure fiscal stability of MSW facilities