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US v. State of New York, 09-3344

By FindLaw Staff on October 12, 2010 | Last updated on March 21, 2019

Finding of Liability Against Owners of Coal-Fired Electric Power Plants Reversed

US v. State of New York, 09-3344, concerned a challenge to the jury's finding of liability against the defendants in the Environmental Protection Agency's (EPA) suit against affiliated owners of a number of coal-fired electric power plants in the Midwest, claiming that defendants violated section 165(a) of the Clean Air Act by modifying a number of the plants without first obtaining from the agency a permit that the agency claims was required by a regulation, 40 C.F.R. section 52.21(a)(2)(iii), because the modifications were "major" and would produce increases in emissions of nitrogen oxide and sulfur dioxide.


The court reversed the judgment of the district court so far as the sulfur dioxide emissions are concerned as the Clean Air Act does not authorize the imposition of sanctions for conduct that complies with a State Implementation Plan that the EPA approved, and here, the EPA approved Indiana's plan with exceptions that did not include section 43, thinking that Indiana would submit a revised plan which the EPA would then approve.  Further, with respect to the charge of nitrogen oxide pollution, government's experts should have been excluded, and without expert testimony to support an estimate of actual emissions caused by the modifications, the government cannot prevail.

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