The U.S. Supreme Court's New Dukedom: The Hour and Year, or a Proposal Quite Near

Abstract

In late 1999, the federal government sued thirty-six electric power facilities to enforce several of the Clean Air Act's New Source Review (NSR) and New Source Performance Standards (NSPS) provisions. As these cases have slowly churned through the courts, the government has simultaneously tinkered with these rules through various rulemaking initiatives. Taken together, these actions have clouded the meaning of critical NSR and NSPS provisions, and generated many additional civil and legislative battles. This Article focuses on the U.S. Supreme Court's review of one such civil battle - the Fourth Circuit's decision in United States v. Duke Energy Corp. - and EPA's subsequent rulemaking response. The Article first dissects the Fourth Circuit's opinion, argues that it was wrongly decided, and urges the U.S. Supreme Court to reach a different conclusion. Then, the Article outlines EPA's proposed regulatory solution to the Fourth Circuit's decision and proposes two vastly different regulatory responses. Unlike EPA's proposal, this Article's proposals unify the NSR and NSPS provisions and provide greater regulatory flexibility without significantly weakening the NSR program. Regardless of what the U.S. Supreme Court decides, this Article takes the position that Congress or EPA should adopt one of its proposals because the proposals ease industry burdens, provide greater environmental protection, and simplify the entire NSR and NSPS process.