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7th Circuit finds for energy plant

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The 7th Circuit Court of Appeals today reversed a decision out of Indiana regarding a claim by the Environmental Protection Agency that Cinergy Corp. was wrong to modify its coal-burning plants without first obtaining a permit from the EPA.

In a suit older than a decade, the U.S. District Court for the Southern District of Indiana, Indianapolis Division, had found in favor of the U.S. government, but the  7th Circuit disagreed in U.S.A. and State of New York v. Cinergy Corporation, et al., Nos. 09-3344, 09-3350, 09-3351.

The EPA had filed suit over permits needed for modifications. At issue was whether the permits were required if the hourly increase in emissions of nitrogen oxide and sulfur dioxide had not increased, even if the annual amounts had increased due to more productivity from the modifications, and therefore more hours of production.

The District Court rejected Cinergy’s argument that because the hourly emissions rate hadn’t changed, even if the annual rate increased, they didn’t need the permit. The 7th Circuit agreed in an interlocutory appeal.

After the 7th Circuit’s decision on the interlocutory appeal, the case continued in the District Court with a jury trial, “although a case of such complexity, rife with technical issues, is not an ideal one for a jury to decide,” wrote 7th Circuit Judge Richard A. Posner.

Following the trial, where 14 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 and all undertaken between 1989 and 1992.

However, at the time these projects took place, the Indiana standard had not yet been updated to reflect the Clean Air Act.

“The Clean Air Act does not authorize the imposition of sanctions for conduct that complies with a State Implementation Plan that the EPA has approved. See 42 U.S.C. § 7413(a)(1). The EPA approved Indiana’s plan with exceptions that did not include Section 43, thinking that Indiana would submit a revised plan which the EPA would then approve. Which is what happened – only it took 12 years,” Judge Posner wrote.

“The agency’s frustration is understandable,” regarding the EPA, he continued. “It embraced the actual-emissions standard, which for the reasons explained in our previous opinion and repeated earlier in this one makes better economic sense, before section 43 was presented for its approval. It should have disapproved it; it didn’t; but it can’t impose the good standard on a plant that implemented the bad when the bad one was authorized by a state implementation plan that the EPA had approved. The blunder was unfortunate but the agency must live with it.

“The judgment of the district court must therefore be reversed so far as the sulphur dioxide emissions are concerned,” he added. “With respect to the emissions of nitrogen oxide, the parties agree that the actual-emissions standard controls, and the only question we need answer is whether the district court was right to allow the EPA’s expert witnesses to testify that the modifications made would result in an increase in annual emissions beyond what the state implementation plan permitted.”

He emphasized the term “would,” as opposed to “did,” because the permit must be obtained before a modification can be made so the effect on emissions is a prediction rather than an observation, he wrote.

Because the Wabash plant is old, the formula used by the EPA experts to determine emissions based on baseload numbers as opposed to cycling numbers, would not apply to the Wabash facility because it does not operate at full capacity.

“In fairness to the district judge, we note that Cinergy didn’t argue this point to him with any clarity; this is a common pitfall in a scattershot approach to litigation. The point isn’t even clear in Cinergy’s appeal briefs,” Judge Posner wrote.

 

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  1. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  2. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  3. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  4. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  5. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

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