Oct 27 - McClatchy-Tribune Regional News - Brian Bowling The Pittsburgh Tribune-Review


An impenetrable cloud surrounds a 2005 lawsuit Pennsylvania and four other states brought against Allegheny Energy for alleged Clean Air Act violations. Of the 339 documents filed so far in the federal case, 21 key documents are under seal.

University of Pittsburgh law professor Arthur Hellman called that unusual.

"The court system does and should operate in public view unless there's some very good reasons not to," he said.

The latest sealed document is an Aug. 18 opinion by U.S. District Judge Terrence McVerry that represents a ruling on one or more issues. In response to his ruling, the five states filed a motion Friday asking the judge to disqualify himself.

The states' motion cites federal code requiring a judge to remove himself from a case where "his impartiality might reasonably be questioned."

Representatives of the state Department of Environmental Protection and Allegheny Energy declined to discuss the case.

Hellman said sealing an entire opinion is "quite rare." Judges in cases with sealed documents usually release public versions of their opinions that black out any reference to the sealed documents, he said.

Appeals courts rarely remove judges for comments they make in their opinions, he said.

The 3rd U.S. Circuit Court of Appeals refused to remove U.S. District Judge Arthur Schwab from the public corruption case of Dr. Cyril Wecht after the judge said in a pretrial opinion that he would hold a contempt hearing after the trial to determine whether Wecht's lawyers had deliberately delayed the legal process. The Justice Department later dropped all charges against Wecht.

On the other hand, the appeals court removed the judge in an Eastern Pennsylvania tobacco case after he made derogatory comments about the ethics of cigarette manufacturers, Hellman said.

"It would have to be something that he said about the litigants or the lawyers that goes beyond their positions in the case," he said.

Pennsylvania, Connecticut, Maryland, New Jersey and New York are suing the utility involving the upgrades of three of its oldest plants without bringing them into compliance with state and federal air regulations. Built between 1958 and 1971, the plants in Armstrong, Greene and Washington counties were grandfathered under the 1990 amendments to the federal clean air laws.

That allowed Allegheny Energy to keep operating the plants without having to immediately add new pollution controls, but the plants lose that exemption if the utility makes changes to increase their capacity.

Allegheny Energy contends that state and federal regulators knew about the upgrades, which were made in the 1990s, and decided that each one didn't trigger the requirement for new pollution controls. The states are trying to change those decisions now that the utility has made the upgrades, the company says in its pretrial statement.

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