Lexington, VA • Friday, April 13, 2007
As reported last year, visiting professor of law Sean Donahue and third-year law student Kate Speiker argued separate cases before the United States Supreme Court and the Fourth Circuit Court of Appeals, respectively. Decisions in both cases were released this spring, and clients represented by the Washington and Lee advocates were victorious in both of them.
Arguing on behalf of Environmental Defense against Duke Energy, Donahue argued that power plant modifications by Duke were subject to the EPA's permitting process because they increased the overall output of pollutants by those plants, while Duke maintained that hourly emissions had not increased and therefore, no EPA review was required. (Read more about the case here.) The justices unanimously agreed with Donahue, writing in the opinion, "What these provisions are getting at is a measure of actual operations averaged over time, and the regulatory language simply cannot be squared with a regime under which "hourly rate of emissions" is dispositive."
"It's an exciting win, and the Court's opinion should aid public and private enforcement of Clean Air Act requirements and removing tons of harmful pollutants that are now emitted by old coal-burning facilities," said Donahue. "The decision represents a lot of hard work by my co-counsel at the Southern Environmental Law Center, by our clients Environmental Defense and the other nonprofit groups, and by dedicated civil servants at the Department of Justice and EPA."
Added Donahue, "We also got terrific amicus support from a variety of quarters, including an excellent amicus brief on behalf of members of Congress co-authored by W&L Law Professor Dave Zaring and former W&L visiting Professor Stephanie Tai, now of the University of Wisconsin."
In a case stretching back ten years involving one of the first clients of the W&L Black Lung Legal Clinic, Speiker represented the widow of Harold Terry against Hobet Mining Inc. (Read more about the case here.) Hobet had appealed Mr. Terry's benefits award four times since the benefits were awarded in 1998. The panel of judges hearing the case for the Fourth Circuit agreed with Speiker that Hobet's arguments for repeatedly challenging the benefits award were without merit.
"It is fair to say that the panel accepted all of our arguments, hands down, said Mary Natkin, clinical professor of law. "This is a really strong opinion."