[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [transcript, PDF] Wednesday in Environmental Defense v. Duke Energy Corp. [Duke Law case backgrounder; merit briefs], 05-848, where the justices are considering a challenge to modifications to coal-fired power plants made by Duke Energy that allow the plants to run longer each day, increasing the amount of emissions, but not affecting the rate. According to the appellant environmental groups, Duke circumvented Clean Air Act (CAA) New Source Review rules [EPA materials], which require utility companies to install costly equipment to monitor and control pollution emissions in new power plants. The appellants claim that Duke abused the exemption designed for older power plants by spending millions in upgrades to existing facilities to avoid building new plants with the expensive devices and they assert that the act requires pollution emissions to be measured yearly instead of hourly. The groups also questioned the authority of the US Court of Appeals for the Fourth Circuit in ruling [opinion text, PDF; JURIST report] that Duke's modifications complied with the legislation, contending the CAA excludes judicial review of its regulations in enforcement proceedings and must be challenged in the DC Circuit.

Also Wednesday, the Court heard oral arguments [transcript, PDF] in Whorton v. Bockting [Duke Law case backgrounder; merits briefs], 05-595, a case involving a circuit split on the question of whether the court's earlier ruling in Crawford v. Washington [Duke Law case backgrounder], which established that out-of-court statements are inadmissible unless the witness is unavailable and the defendant has an opportunity to cross-examine her, applies retroactively. In the trial court, Bockting was convicted of sexual assault and sentenced to life imprisonment based on the statements of the sole witness to police. However, the US Court of Appeals for the Ninth Circuit ruled [opinion text, PDF] in Bockting's habeas proceeding that Crawford applied retroactively because it is a watershed rule of criminal procedure that provides a fundamental principle affecting the outcomes of cases. AP has more.