W&L Professor Takes on Duke Energy before United States Supreme Court

Lexington, VA Friday, October 27, 2006

Sean Donahue

Update: Argument Transcript Available

How does a lawyer prepare to argue a case for the first time before the highest court in the land? Washington and Lee University School of Law Visiting Professor Sean Donahue, an experienced appellate litigator who has argued 30 federal cases and appeared before the highest state courts in Idaho and Maryland, admits this time things are a little more intense.

"I'm taking advice, doing a lot of reading and a few moot courts. Trying to anticipate the tough questions the justices will ask," says Donahue. "I have to condense this case into three of four key points I want to get across, which will be tough to do. I only have 15 minutes."

Donahue will find out if all that preparation pays off when he serves as one of the plaintiff's attorneys in Environmental Defense, et al. v. Duke Energy Corp., a complex case involving court jurisdiction and statutory interpretation of the Clean Air Act. Oral arguments will take place before the Supreme Court on Wednesday, November 1, 2006.

Donahue, who has been a visiting professor at the School of Law several times over the last five years, runs an appellate law practice based in Washington, D.C. that centers on environmental issues. Donahue became acquainted with Environmental Defense, a national nonprofit organization that pursues solutions to environmental problems by linking science, economics and the law (www.environmentaldefense.org), a few years ago when he wrote an amicus curiae (friend of the court brief ) on their behalf for another Supreme Court case. When the Duke Energy case emerged, they asked him to participate in the litigation.

In this suit, Environmental Defense argues that Duke Energy should have gone through the EPA's permitting process when beginning a modernization program that significantly increased the daily output of pollutants from old power plants originally not affected by the Clean Air Act. The permitting and review process would have ensured that proper emissions controls were installed when the plants were upgraded. Duke Energy, who supplies power to more than 2 million people in North and South Carolina, argues that the upgrades to their power plants did not meet the Environmental Protection Agency's definition of "major modifications" and therefore did not require EPA oversight.

Duke Energy has prevailed in lower court rulings, including one involving the Fourth Circuit Court of Appeals. It was the decision rendered by the 4th Circuit that gave rise to the second component of this suit, the issue of court jurisdiction. Environmental Defense argues that the 4th Circuit did not have the authority to interpret the statutory language and that this case is under the jurisdiction of D.C. Court of Appeals. The D.C. court has already approved in previous rulings the regulatory definitions used by the EPA that would require Duke Energy to seek permits.

Donahue points out that much is at stake with this ruling. "There are currently ten enforcement actions like this one pending around the country, and they all involve old power plants, some that had even been moth-balled before they were 'modernized'. These old plants account for a disproportionately large amount of pollutants released each year because the plant upgrades did not include up-to-date emissions controls."

Professor Donahue and Environmental Defense are not alone in this dispute, having received support in the form of an amicus brief penned by another W&L Law faculty member, Assistant Professor David Zaring. Zaring, who wrote the brief along with Stephanie Tai, a visitor last year now at the University of Wisconsin Law School, hopes this brief will be of particular interest to the justices as they decide the case.

"This is one of many briefs filed for both sides," says Zaring. "But our brief represents the view of many of the members of congress who drafted the original legislation. It was their intention that old plants be covered by the new source review guidelines should they increase their operational capacity."

As with most cases argued before the court, it is unclear when the justices will deliver an opinion. A decision could come as early as six weeks after oral arguments, but if there is a dissenting opinion, Donahue and Environmental Defense may have to wait several months.

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