TITLE

Environmental Defense v. Duke Energy Corp.: Paving the Way for Cap and Trade?

AUTHOR(S)
Eisele, Shawn
PUB. DATE
August 2008
SOURCE
Ecology Law Quarterly;2008, Vol. 35 Issue 3, p363
SOURCE TYPE
Academic Journal
DOC. TYPE
Article
ABSTRACT
The EPA is shifting its air quality regulation platform from traditional "command and control" to market-based "cap and trade." Environmental Defense v. Duke Energy Corp. opens a window on this changing agenda. Duke Energy asked whether EPA had the flexibility to interpret the same term ("modification ") differently in two sections of the Clean Air Act, where the term was defined by cross-reference between the two uses. The Court found in favor of EPA, ruling that a term could be interpreted differently, depending on the context. Yet despite that holding, EPA promoted a policy that disregarded the Court's decision. In stead of using the two separate interpretations of "modification" that the Court upheld, EPA attempted to unify the interpretations by proposing a less stringent rule. This Note suggests that EPA's action was more accurately an attempt to marginalize the Clean Air Act's Prevention of Signicant Deterioration program, as it applies to modified sources, and instead rely solely on cap and trade regulations to govern power plant modifications. As such, EPA's rule was an attempt to use agency regulations to override congressional intent--that PSD apply to power plant modifications. That action would have exceeded the authorization granted in Duke Energy and not withstood judicial review.
ACCESSION #
35648851

 

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