ELR Citation: ELR 20474
No(s). 95-1290 (D.C. Cir. Oct 29, 1996)

The court upholds the U.S. Environmental Protection Agency's (EPA's) interpretation of Clean Air Act §410(f)'s thermal-energy exemption to prevent small electric utilities opting-in to the sulfur dioxide (SO₂) emissions trading program from transferring or saving their allowances after shutting down a polluting source. EPA interpreted "thermal energy" to exclude energy used to produce electricity, thereby preventing small utilities from taking advantage of §410(f) to obtain allowances by opting-in and then retiring their existing units. The court holds that EPA's interpretation is reasonable because it accords meaning to all the words in the statute, it is consistent with the exception's narrow purpose of assuring access to adequate allowances for independent power producers, and it furthers the goal of reducing SO₂ emissions.

Counsel for Petitioner
David R. Straus
Spiegel & McDermott
1350 New York Ave. NW, Ste. 1100, Washington DC 20005
(202) 879-4000

Counsel for Respondent
Scott J. Jordan
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: EDWARDS, Chief Judge, ROGERS and TATEL, Circuit Judges.