United States v. DTE Energy Co.: A Flawed Decision With Implications for the Future Enforceability of New Source Review
| Date | 01 June 2015 |
| Author |
6-2015 NEWS & ANALYSIS 45 ELR 10589
United States v.
DTE Energy Co.:
A Flawed
Decision With
Implications for
the Future
Enforceability of
New Source
Review
by Jordan R. Schoonover
Jordan R. Schoonover is a 2014 summa cum laude graduate
of Lewis & Clark Law School who currently serves as law
clerk to Senior United States District Judge Edward F. Shea.
Summary
In United States v. DTE Energy Co. (DTE), the U.S.
Court of Appeals for the Sixth Circuit held that EPA
may use Clean Air Act New Source Review (NSR) to
challenge a source’s preconstruction emission projec-
tion on narrow procedural grounds, but not to “sec-
ond-guess” the projection’s substance. e decision
is based on an incorrect interpretation of the NSR
regulations and undermines the NSR program’s pre-
construction review component. EPA should either
change its regulations or clarify its interpretation of
them, and adopt a litigation strategy to minimize the
DTE decision’s unfavorable aspects and to persuade
the Sixth Circuit to correct its errors. is will be
important so EPA can continue using NSR, in con-
cert with the proposed Clean Power Plan, to address
air pollution from existing power plants.
I. Introduction
e average adult breathes more than 3,000 gallons of air
every day.1 Unfortunately, for millions of people, that air
contains pollutants such as particulate matter, ozone, sul-
fur dioxide (SO2), nitrogen oxides (NOx), carbon monox-
ide, and greenhouse gases (GHGs).2 e health impacts of
these pollutants include reduced lung function, asthma,
bronchitis, heart disease, cancer, and premature death.3
Air pollution a lso has signicant environmental impacts,
including acid rain,4 reduced visibility,5 and global climate
change.6 Because air pollutants can travel thousands of
miles and impact people and places far from their source,
it is necessary to combat air pollution on a national level.7
To address these problems, the U.S. Congress passed
the Clean Air Act (CAA) in 1970, the purpose of which
was “to protect and enhance the quality of the Nation’s air
resources so as to promote the public health and welfare
and the productive c apacity of its population.”8 e Act’s
various programs address a range of pollutants and pollu-
tion sources. One of the most signicant sources of air pol-
lution in the United States is the nation’s 1,100 coal-red
power plants.9 ese plants are responsible for two-thirds
of the country’s total SO2 emissions and one-third of its
total emissions of NOx.10 ey a re also the largest single
source of GHG emissions in the country, contributing
more than one-quarter of the country’s emissions.11
1. U.S. Envtl. Prot. Agency (EPA), , Air and Radiation,
http://www.epa.gov/air/basic.html (last visited Feb. 22, 2015).
2. See U.S. EPA, , Air and Radia-
tion, http://www.epa.gov/airquality/urbanair/ (last visited Feb. 22, 2015);
Endangerment and Cause or Contribute Findings for Greenhouse Gases
Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66496 (Dec. 15,
2009) (nding that GHGs endanger the public health).
3. See U.S. EPA, Ozone and Your Health (2009), available at http://www.
epa.gov/airnow/ozone-c.pdf; U.S. EPA, ,
AirNow, http://www.airnow.gov/index.cfm?action=particle_health.index
(last visited Feb. 22, 2015); U.S. EPA,
Pollutants, e Plain English Guide to the Clean Air Act, http://www.epa.
gov/airquality/peg_caa/cleanup.html (last visited Feb. 22, 2015).
4. See U.S. EPA, , e Plain English Guide to the Clean Air
Act, http://www.epa.gov/airquality/peg_caa/acidrain.html (last visited Feb.
22, 2015).
5. See U.S. EPA, , e Plain English
Guide to the Clean Air Act, http://www.epa.gov/airquality/peg_caa/parks.
html (last visited Feb. 22, 2015).
6. See I P C C, C C
2007: S R 36 (2007), available at http://www.ipcc.ch/pdf/
assessment-report/ar4/syr/ar4_syr.pdf.
7. See U.S. EPA, , e Plain English
Guide to the Clean Air Act, http://www.epa.gov/airquality/peg_caa/inter-
state.html (last visited Feb. 22, 2015).
8. Clean Air Act (CAA), 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-
618. See 42 U.S.C. §7401(b)(1) (2006).
9. See U.S. EPA, , Enforcement, http://www2.epa.gov/en-
forcement/air-enforcement#nsr (last visited Feb. 22, 2015).
10. Id.
11. N M. B ., W R I, C
U.S. G T F H 8-9, g. 5 (2013), available at http://www.
wri.org/publication/can-us-get-there-from-here.
Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
45 ELR 10590 ENVIRONMENTAL LAW REPORTER 6-2015
e C AA’s ability to regulate emissions from existing
power plants has recently been undermined by several
appellate court decisions that weaken the Act’s New Source
Review (NSR) program.12 In enacting the program, Con-
gress sought to strike a compromise between reducing air
pollution and maintaining industrial growth.13 Existing
sources would not be required to install pollution controls
immediately.14 Instead, they would be allowed to con-
tinue operating until they undertook a major construction
project, at which time they would be required to obtain
an NSR per mit and in stall pollution controls.15 In this
way, existing sources would be grandfathered in, but not
indenitely; they would be requi red to install pollution
controls if they underwent a major modication to extend
their lifespa n.16
In the 1990s, the U.S. Environmental Protection Agen-
cy’s (EPA’s) investigations revealed a “high rate of noncom-
pliance” with NSR a mong existing power plants.17 e
Agency commenced an enforcement initiative to address
these noncompliance issues in 1999.18 Several of the ensu-
ing lawsuits have been settled,19 but some are still ongoing
more than one decade a fter they were led.20 EPA contin-
ues to investigate NSR violations and bring new enforce-
ment actions.21 As of 2012 (the most recent date for which
data is available), the Agency’s eorts had resulted in con-
trols at 461 of the country’s 1,100 power plants.22
However, EPA’s continued ability to eectively enforce
the NSR program and control pollution from existing
12. 42 U.S.C. §§7470-79, 7501-09 (2006); see United States v. EME Homer
ed States v. Midwest Generation, LLC, 720 F.3d 644, 43 ELR 20153 (7th
Cir. 2013); and United States v. DTE Energy Co., 711 F.3d 643, 43 ELR
20070 (6th Cir. 2013) (all denying or limiting EPA’s ability to bring an
enforcement action).
13. See 42 U.S.C. §7470.
14. See 42 U.S.C. §7475.
15. Id.
Cir. 1979).
17. U.S. EPA, , supra note 9.
18. U.S. EPA, , Enforcement, http://www2.
epa.gov/enforcement/coal-red-power-plant-enforcement (last visited Feb.
22, 2015); see also Bruce Barcott, , N.Y. T M.,
at pt. II, Apr. 4, 2004, available at http://www.nytimes.com/2004/04/04/
magazine/04BUSH.html (last visited Feb. 22, 2015).
19. See U.S. EPA, , supra note 18.
20. Consider, for example, the complex history of the United States v. Duke
Energy Corp. case. e complaint was led in a North Carolina district
court in 2000. After the district court granted summary judgment for Duke
Energy, 278 F. Supp. 2d 619 (M.D.N.C. 2003), the government appealed
to the U.S. Court of Appeals for the Fourth Circuit, which armed, 411
F.3d 549, 35 ELR 20121 (4th Cir. 2005). Environmental groups then ap-
pealed the case to the U.S. Supreme Court, which reversed the Fourth Cir-
cuit in , 549 U.S. 561 (2007). As
of this writing, the parties are once again litigating discovery matters, see
United States v. Duke Energy Corp., 2012 WL 1565228 (M.D.N.C. Apr.
30, 2012), and there appears to be no end in sight. See also United States
v. Alabama Power Co., 730 F.3d 1278, 1280, 43 ELR 20221 (11th Cir.
2013) (noting that the U.S. enforcement lawsuit against Alabama Power has
“lasted for over a decade”).
21. See U.S. EPA,
the Largest Sources, Enforcement, http://www2.epa.gov/enforcement/
national-enforcement-initiative-reducing-air-pollution-largest-sources (last
visited Feb. 22, 2015) (showing, in chart form, EPA’s progress toward inves-
tigating and controlling coal-red electric utility units).
22. Id.
power plants will depend partially on the existence of case
law precedent upholding the Agency’s broad enforcement
authority. Because most of the NSR power plant enforce-
ment cases present t he same suite of issues, incorrect
decisions can have broad negative implications.23 Unfortu-
nately, 2013 saw a rash of awed federal circuit court deci-
sions that have the potential to weaken NSR enforcement.24
is Article addresses one of those decisions, the U.S.
Court of Appeals for the Sixth Circuit’s opinion in United
States v. DTE Energ y Co. (DTE).25 Part II provides a brief
overview of the development of the NSR regulations and
describes the current regulatory framework. Part III oers
an overview of the DTE case. Part IV then critiques the
Sixth Circuit’s DTE decision, arguing that the decision is
contrary to the C AA because the court’s holding, which
is based on its incorrect interpretation of the NSR regu-
lations, undermines the preconstruction review aspect of
the NSR program. Finally, Part V recommends t hat EPA
either change its regulations or clarif y its interpretation of
the relevant provisions, while simultaneously adopting a
litigation strategy to minimize the DTE decision’s unfavor-
able aspects and to persuade the Sixth Circuit to correct its
errors now that the case is once aga in before it on appea l.
is will be important so that EPA can continue using
NSR, in concert with the recently proposed Clean Power
Plan,26 to address air pollution from existing power plants.
II. The NSR Program
e purpose of the CA A is “to protect and enhance the
quality of the Nation’s air resources so as to promote the
public health and welfare and the productive capacity of
its population.”27 Passed in 1970, the Act sought to achieve
environmental and health benets in a way that was not
economically crippling.28 e NSR program is but one of
many components of the CAA, which addresses a variety
of pollutants and pollution sources.29 Once triggered, the
NSR program regulates emissions of air pollutants such
as ozone, carbon monoxide, particulate matter, SO2, lead,
23. See, e.g., Conservation Law Found., Inc. v. Public Serv. Co. of N.H., 2012
WL 4477669, at *1 n.1 (D.N.H. Sept. 27, 2012) (st aying the case in New
Hampshire district court (part of the U.S. Court of Appeals for the First
Circuit) to await a decision by the U.S. Court of Appeals for the Sixth Cir-
cuit in DTE); United States v. Oklahoma Gas & Elec. Co., slip op. at 8-10,
No. CIV-13-690-D (W.D. Okla. Jan. 15, 2015) (spending three pages of
the court’s 13-page order reviewing the Sixth Circuit’s decision in DTE to
“contextualize the is sues,” and stating that the DTE opinion is persuasive
but not determinative in this case in the U.S. Court of Appeals for the
Tenth Circuit).
24. United States v. EME Homer City Generation, LLC, 727 F.3d 274, 43 ELR
644, 43 ELR 20153 (7th Cir. 2013); and United States v. DTE Energy Co.,
711 F.3d 643, 43 ELR 20070 (6th Cir. 2013) (all denying or limiting EPA’s
ability to bring an enforcement action).
26. See U.S. EPA, Fact Sheet: Clean Power Plan and Carbon Pollution Stan-
dards, Key Dates (2015), available at http://www2.epa.gov/sites/produc-
tion/les/2015-01/documents/20150107fs-key-dates.pdf.
27. 42 U.S.C. §7401(b)(1) (2006).
28. 42 U.S.C. §7470.
29. See 42 U.S.C. §§7401-7515 (stationary sources), §§7521-7590 (mobile
sources), §7651-7651o (acid rain), §7671-7671q (ozone).
Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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