ILNews

7th Circuit finds for energy plant

Back to TopE-mailPrintBookmark and Share

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.

 

ADVERTISEMENT

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

ADVERTISEMENT