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Tuesday, October 12, 2010

Ind, Decisions - 7th Circuit decides a Cinergy case today

In USA v. Cinergy Corporation (SD Ind., McKinney), a 12-page opinion, Judge Posner notes:

After we decided the interlocutory appeal, the case resumed in the district court and went to trial before a jury—although a case of such complexity, rife with technical issues, is not an ideal one for a jury to decide. The jury’s verdict was mixed. Fourteen modification projects at three plants were at issue; the jury found liability with respect to four of the projects, all at Cinergy’s plant in Wabash, Indiana, and all undertaken between 1989 and 1992. These modifications, the jury found, had been likely to increase the plant’s annual emissions of sulphur dioxide and nitrogen oxide and therefore Cinergy should have sought a permit. (Actually the jury’s finding is limited to three of the generating units at the Wabash plant, but for simplicity we’ll treat the plant as the unit of analysis.)
Posner reverses the district court in this appeal:
Without expert testimony to support an estimate of actual emissions caused by the modifications, the government cannot prevail with respect to the charge of nitrogen oxide pollution; for the government doesn’t contest Cinergy’s claim that if the testimony of the government’s experts should have been excluded, Cinergy is entitled to judgment. Earlier we said that the government cannot prevail with respect to the plant’s emissions of sulphur dioxide. Therefore the judgment must be reversed with instructions to enter judgment for Cinergy.

Posted by Marcia Oddi on October 12, 2010 02:43 PM
Posted to Ind. (7th Cir.) Decisions