®: CRE Regulatory Action of the Week
Supreme Court To Review NSR Enforcement Decision
The United States Supreme Court has decided to review a Fourth Circuit decision on the Clean Air Act's New Source Review provisions. The petition for High Court review was filed by Environmental Defense, an environmental NGO and an intervener in the Fourth Circuit litigation. The original plaintiff and defendant, EPA and Duke Energy Corp, both opposed Environmental Defense's petition for Supreme Court review.
EPA's New Source Review Program is very controversial. It has been subject to extensive and not always consistent judicial review. Environmental Defense argues that the Fourth Circuit's opinion being reviewed by the Supreme Court conflicts with a D.C. Circuit opinion, New York v. EPA. Environmental Defense claims the Fourth Circuit did not have jurisdiction to review EPA's NSR program in an EPA enforcement action against Duke because the D.C. Circuit has exclusive jurisdiction over it and exercised that jurisdiction in a generic challenge to EPA's NSR rules. The Supreme Court's opinion may clarify much of the current confusion.
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