United States DC Circuit

Power companies' challenges to the EPA's growth factors are neither time-barred where the agency's rulemaking notice is ambiguous, nor barred by res judicata where unlitigated issues remain.

Appellate Information

• Argued 03/23/2001
• Decided 06/08/2001
• Published 06/08/2001

Judges

• Before:  EDWARDS, Chief Judge, WILLIAMS and SENTELLE, Circuit Judges.

Court

• United States DC Circuit

Counsel

• For Appellant:
  
• Norman W. Fichthorn argued the cause for the Industry Petitioners on the Electric Generating Facility Issues.   With him on the briefs were Andrea Bear Field, James D. Elliott, Mel S. Schulze, David M. Flannery, Kathy G. Beckett, Gale R. Lea, Scott D. Goldman, and Jeff F. Cherry.  Kyle W. Danish entered an appearance., Marc D. Bernstein, Assistant Attorney General, State of North Carolina, argued the cause for the Petitioning States.   With him on the briefs were Michael F. Easley, Attorney General, James C. Gulick and J. Allen Jernigan, Special Deputy Attorneys General, James P. Longest, Jr. and Amy R. Gillespie, Assistant Attorneys General, Betty D. Montgomery, Attorney General, State of Ohio, Bryan F. Zima, Assistant Attorney General, Bill Pryor, Attorney General, State of Alabama, Tommy E. Bryan and Prudence A. Cash-Brown, Assistant Attorneys General, Jennifer Granholm, Attorney General, State of Michigan, Alan F. Hoffman, Assistant Attorney General, Charles M. Condon, Attorney General, State of South Carolina, Samuel L. Finklea and Thomas G. Eppink, Attorneys, Mark L. Earley, Attorney General, Commonwealth of Virginia, Roger L. Chaffe, Senior Assistant Attorney General, Stewart T. Leeth, Assistant Attorney General, and Thomas H. Zerbe, Senior Counsel, State of West Virginia., Theodore L. Garrett argued the cause for the Split State Petitioners Kansas City Power & Light Company, et al.   With him on the briefs were Michael D. Hockley and Terry W. Schackman., Scott H. Segal argued the cause for the Non-Electric Generating /Industrial Petitioners.   With him on the briefs were Lisa M. Jaeger, Charles S. Carter, Deborah Ann Hotel, Kathy G. Beckett and Scott Goldman., Robert A. Reiley and M. Dukes Pepper, Jr. were on the brief of Intervenor Commonwealth of Pennsylvania.  Thomas Y. Au entered an appearance.


• For Appellees:
  
• Andrew J. Doyle, Attorney, U.S. Department of Justice, argued the cause for respondent.   With him on the brief were Lois J. Schiffer, Assistant Attorney General, and Sara Schneeberg, Attorney, U.S. Environmental Protection Agency.