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Second Cinergy trial starts in Indy

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A second clean-air violation trial is underway in Indianapolis about whether coal-fired power plant modifications triggered a need for new pollution-control equipment at facilities in Indiana and Ohio.

Expected to last six to 10 days, this trial in the decade-old case began Monday in U.S. District Judge Larry McKinney's courtroom in the Southern District of Indiana. A total of 84 prospective jurors were vetted before 10 were seated for the trial. Each side's attorney made an hour-long opening argument before jurors were dismissed for the day.

U.S., et al. v. Cinergy Corp., et al., No. 1:99-cv-1693, includes the states of Connecticut, New Jersey, and New York as plaintiffs, as well as the Hoosier and Ohio Environmental councils. Dozens of attorneys are listed on the case, including local counsel from Taft Stettinius & Hollister in Indianapolis: Scott R. Alexander, Jayna Morse Cacioppo, Robert R. Clark, and John D. Pappageorge.

The suit dates to 1999, when the Environmental Protection Agency under the Clinton administration alleged that energy company Cinergy - bought by Duke Energy in 2006 - substantially upgraded six power plants in Indiana and Ohio without installing required modern pollution controls as required by law. The government alleged that Cinergy's work exceeded ordinary maintenance or repairs and required a permit at each plant, but the company disagreed.

In what was dubbed the nation's first case to go before a jury on this issue, the first two-week trial in May 2008 in Judge McKinney's courtroom resulted in jurors finding that Cinergy had violated the U.S. Clean Air Act at its Wabash plant in Terre Haute. But they cleared the company regarding modifications made at four other plants in Indiana and Ohio. On balance, it was a victory for Duke.

But after that verdict, attorneys discovered a previously undisclosed piece of discovery that raised questions about the verdict and resulted in Judge McKinney ordering a new liability trial.

Most of the previous orders and rules in place apply to this second trial, and both sides are focusing on testimony from experts and engineers about the power plant projects and what affect they see that having on overall emissions. The case boils down to how the company analyzed possible pollution effects prior to starting construction in the 1990s.

During opening statements, attorneys used color photos of the power plants and charts with emission information to describe what is being debated in this case. U.S. Department of Justice attorney Phillip Brooks said evidence would prove that in repairing faulty components in major energy-generating units that could have shut down completely or at a lower level, Cinergy increased emissions by more than a standard 40 tons as a result of improvements done at the plant and that required a permit and pollution controls.


"There's nothing wrong with fixing these things, but there are rules in doing that," he said. "That's what is at issue here: whether the company followed the rules."

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  1. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  2. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  3. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

  4. This is easily remedied, and in a fashion that every church sacrificing incense for its 501c3 status and/or graveling for government grants should have no problem with ..... just add this statue, http://commons.wikimedia.org/wiki/File:Capitoline_she-wolf_Musei_Capitolini_MC1181.jpg entitled, "Jesus and Cousin John learn to suckle sustenance from the beloved Nanny State." Heckfire, the ACLU might even help move the statue in place then. And the art will certainly reflect our modern life, given the clergy's full-bellied willingness to accede to every whim of the new caesars. If any balk, just threaten to take away their government milk … they will quiet down straightaway, I assure you. Few, if any of them, are willing to cross the ruling elite as did the real J&J

  5. Tina has left the building.

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