USA v. Alabama Power Company
730 F.3d 1278
11th Cir.2013Background
- The United States sued Alabama Power under the Clean Air Act (PSD program), alleging three coal-fired unit modifications (Gorgas Unit 10, Greene County Unit 2, Barry Unit 2) were "major modifications" because they increased expected SO2 and NOx emissions without permits.
- Government’s case relied on expert testimony using the Koppe-Sahu model: Koppe estimated increases in unit availability/capacity; Sahu converted increased generation into pollutant emissions using plant-specific emission factors.
- The district court excluded Koppe and Sahu under Daubert, adopting reasoning from the Seventh Circuit in Cinergy that the methodology reliably predicts emissions only for "baseload" units and not for cycling units, and struck supplemental Sahu material as untimely; the court then entered summary judgment for Alabama Power.
- The government (and intervenor) appealed the exclusions; the Eleventh Circuit affirmed the striking of Sahu’s supplemental opinions but reversed the wholesale exclusion of Koppe and Sahu, vacated the judgment, and remanded for further proceedings.
- The Eleventh Circuit held the Koppe-Sahu model can be reliable for both baseload and cycling units if supported by evidence demonstrating three conditions (additional available hours would be used; no increased reserve shutdown; output factor would not decrease), and found the record (including Alabama Power’s own documents) provided such support here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Koppe-Sahu expert testimony is admissible under Rule 702/Daubert | Koppe-Sahu reliably links modifications → availability/capacity → increased generation → increased emissions; model supported by company records and industry methods | Model unreliable for non-baseload (cycling) units; assumptions unsupported and therefore ipse dixit; supplemental Sahu opinion untimely | Reversed exclusion: model admissible where evidentiary support exists for key assumptions; remanded. Supplemental Sahu material properly struck (affirmed). |
| Whether Cinergy precludes use of Koppe-Sahu for cycling units | Cinergy not dispositive here because record contains expert support for applying model to cycling units | Cinergy requires exclusion absent specific evidence tying increased capacity to increased output for cycling units | Cinergy does not mandate per se exclusion; it requires case-specific expert support — present here. |
| Whether district court abused discretion in Daubert ruling | Gov’t: district court misapplied Cinergy and erred in finding lack of evidentiary support | Alabama Power: district court acted within broad discretion to exclude flawed expert methods | Court reviews for abuse of discretion, finds exclusion of Koppe/Sahu an abuse of discretion given record support. Dissent would have affirmed. |
| Whether supplemental Sahu declarations were timely | Gov’t: supplemental calculations were proper rebuttal/explanatory | Alabama Power: late expert opinions should be struck | Eleventh Circuit affirmed district court’s striking of those new supplemental opinions. |
Key Cases Cited
- Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (gatekeeper reliability standard for expert testimony)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (Daubert gatekeeping applies to all expert testimony; district court discretion)
- General Elec. Co. v. Joiner, 522 U.S. 136 (abuse-of-discretion standard for appellate review of Daubert rulings)
- United States v. Cinergy Corp., 623 F.3d 455 (7th Cir.) (limits of emission-prediction model for cycling vs baseload units)
- Allison v. McGhan Medical Corp., 184 F.3d 1300 (11th Cir. 1999) (preference for admissibility; cross-examination and contrary evidence address shakier expert proof)
- United States v. Frazier, 387 F.3d 1244 (11th Cir. 2004) (methodology must be reliably applied to facts in issue)