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MIRANT POTOMAC RIVER, LLC v. U.S. E.P.A.

No. 08-1277.

577 F.3d 223 (2009)

MIRANT POTOMAC RIVER, LLC, Petitioner, v. The UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Lisa P. Jackson, Administrator, U.S. Environmental Protection Agency, Respondents, Commonwealth of Virginia ex rel. Robert F. McDonnell, Intervenor.

United States Court of Appeals, Fourth Circuit.

Decided: August 12, 2009.

Attorney(s) appearing for the Case

ARGUED: Jeffrey R. Holmstead, Bracewell & Giuli Ani, LLP, Washington, D.C., for Petitioner. Jon Michael Lipshultz, United States Department of Justice, Environmental Defense Section, Washington, D.C., for Respondents. Carl Josephson, Office of the Attorney General of Virginia, Richmond, Virginia, for Intervenor. ON BRIEF: Sonja Rodman, EPA Office of General Counsel, Washington, D.C., Neil Bigioni, EPA Office of General Counsel, Philadelphia, Pennsylvania; Ronald J. Tenpas, Assistant Attorney General, John C. Cruden, Deputy Assistant Attorney General, United States Department of Justice, Environmental Defense Section, Environmental and Natural Resources Division, Washington, D.C., for Respondents. William E. Thro, State Solicitor General, Stephen R. McCullough, Deputy State Solicitor General, Roger L. Chaffe, Senior Assistant Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for Intervenor.

Dismissed by published opinion. Judge DUNCAN wrote the opinion, in which Judge MOTZ and Judge GREGORY joined.

OPINION

DUNCAN, Circuit Judge:

Mirant Potomac River, LLC ("Mirant") appeals the Environmental Protection Agency's ("EPA") approval of Virginia's Clean Air Interstate Rule State Implementation Plan ("CAIR SIP"). Mirant's alleged injury, however, flows from Virginia's Nonattainment Provisions, which are separate emissions standards adopted by Virginia's Air Pollution Control Board ("Virginia Board") under the authority of the Virginia legislature. Because...

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