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Duquesne Light Co. v. EPA

ELR Citation: 29 ELR 20477
Nos. 98-3071, 166 F.3d 609/48 ERC 1090/(3d Cir., 02/03/1999)

The court holds that an electric utility lacks standing to petition for review a U.S. Environmental Protection Agency (EPA) final rule approving a revision to the new source review program of Pennsylvania's Clean Air Act (CAA) state implementation plan (SIP). The state's new source review program is more stringent than federal requirements in that it limits the period in which a reviewing agency can look back to determine a representative two-year period of a source's emissions. In contrast, EPA does not limit the look-back period. The court first holds that the utility has shown injury-in-fact. The utility will lose emission reduction credits (ERCs) as a result of EPA's approval of the state SIP's definition of actual emissions. The court next holds that EPA's action in approving the state SIP is not fairly traceable to EPA's approval of the state's new source review program. The utility's injury is manifestly the product of the independent action of a third party—the state environmental agency. It is the state environmental agency's action of redefining the SIP that results in the reduction of ERCs below the level that the utility urges would be the result if the state definition did not go beyond the minimum stringency required by federal law. EPA only has the power to disallow state SIPs that fall below the level of stringency provided by federal law. Similarly, the court holds that the utility's injury will not be redressed by a favorable decision. The utility cannot secure an order from EPA or the court requiring the state environmental agency to make its requirements more lax.

Counsel for Petitioner
John P. Proctor, Margaret A. Hill, Andrew H. Leskovsek
Winston & Strawn
1400 L St. NW, Washington DC 20005
(202) 371-5700

Counsel for Respondent
Paul A. Tufano, Terry R. Bossert
Pennsylvania Department of Environmental Protection
Environmental Resources Bldg., 16th Fl., Harrisburg PA 17105
(717) 783-2300

Before McKee and Rendell, JJ.