How greenhouse gases and Best Available Control Technology could shape the regulatory landscape—and the environment.
Jonathan S. Martel, Jessica R. Brody, and Kerri L. Stelcen are partner, associate, and law clerk, respectively, with Arnold & Porter.
The United States Supreme Court soon will decide two Clean Air Act (CAA) cases important to electric utilities: Environmental Defense v. Duke Energy Corp. (Duke Energy) and Massachusetts v. EPA (Massachusetts). The cases concern, respectively, a long-standing controversy over traditional pollutants and the issue of climate change.
Duke Energy is an enforcement case in which the Environmental Protection Agency (EPA) claimed that Duke Energy Corp. violated “Prevention of Significant Deterioration” (PSD) regulations through refurbishment projects that allegedly increased annual utilization of the plant, which the EPA says required a permit and installation of Best Available Control Technology (BACT). The court of appeals rejected EPA’s enforcement claims, cutting through what most likely has been the most controversial and longstanding regulatory battle under the CAA. Massachusetts is a regulatory challenge to EPA’s decision not to regulate emissions of greenhouse gases (GHGs) from motor vehicles under the CAA. Regulation of GHGs has taken center stage among environmental, political and legal battles.