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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I will continue to pray that God keeps giving you the strength and courage to keep fighting for what is right and just so you are aware, you are an inspiration to those that are feeling weak and helpless as they are trying to figure out why evil keeps winning. God Bless.....

  2. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  3. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  4. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  5. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

ADVERTISEMENT