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. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  2. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  3. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.

  4. While if true this auto dealer should be held liable, where was the BMV in all of this? How is it that the dealer was able to get "clean" titles to these vehicles in order to sell them to unsuspecting consumers?

  5. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For imposing Taxes on us without our Consent: He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless [ ] Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. GOD BLESS THE GOVERNORS RESISTING! Count on the gutless judiciary to tie our children down and facilitate the swords being drawn across their throats. Wake Up America ...