The 7th Circuit Court of Appeals is considering the appeal involving the 2009 retrial on clean-air rule violations at a coal-fired power plant in southeast Indiana.
On Sept. 20, a federal appellate panel made up of Chief Judge Frank Easterbrook and Judges Richard Posner and Illana Diamond Rovner took up the case of U.S. and Hoosier Environmental Council, et al. v. Cinergy Corp., Nos. 09-3351, 09-3344, and 09-3350. The issues are whether U.S. District Judge Larry McKinney in May 2009 erred in admitting certain expert witness testimony and also whether he erred in instructing the jury on a standard that wasn’t in place at the time of the projects.
The case dating to 1999 involves violations to parts of the Clean Air Act intended to make sure that older power plants that have major upgrades also meet more modern pollution limits with new permitting and emissions controls. In a partial retrial of some claims after the original May 2008 verdict that went mostly in the utility company’s favor, jurors found that Duke – which bought Cinergy in 2006 – violated the law in two of its projects at three power plants but did not violate the law on four other projects.
At issue now on appeal is the standard used in determining whether regulations were enforceable under the federal act and whether some of the expert testimony the court permitted should not have been allowed.
The judges grilled attorneys Peter Keisler for Cinergy and Jason Dunn for the federal government about certain expert opinions and the reliability of their testimony. The judges took the case under advisement after listening to both sides.
Rehearing "Cinergy trial ends with split verdict" IL May 27 - June 9, 2009