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Ethanol plant emissions suit may be bound for Indiana Supreme Court

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Indiana’s ethanol industry faces an uncertain regulatory environment and likely more stringent emissions standards after a recent Indiana Court of Appeals ruling. A state agency will ask the Indiana Supreme Court to hear the case, as several corn-to-fuel plant operators also are expected to do.

The Court of Appeals this month denied a rehearing in Natural Resources Defense Council v. POET Biorefining-Cloverdale LLC et al., 49A02-1205-MI-423. The court ruled for NRDC, holding that Indiana could not permit ethanol plants to operate in a category allowing annual emissions of up to 250 tons of airborne pollutants. The plants instead should be in a category allowing up to 100 tons, the court held.

NRDC and the permitting agency, Indiana Department of Environmental Management, agree that the state was following guidance from the federal Environmental Protection Agency when it issued permits for a few plants at the 250-ton threshold. The EPA in 2007 determined that ethanol plants should not be considered “chemical process plants” that are subject to the lower emission standard.

The issue, though, is whether IDEM was allowed to grant permits to ethanol plants adopting that federal guidance without first getting formal EPA approval for a change in its state implementation plan as required under the Clean Air Act.

“Other states have not been doing the same thing that Indiana has,” said Ben Longstreth, a Washington attorney for NRDC, explaining why the national organization brought suit here. “Indiana is unique in that it started issuing permits at a different level without changing its state implementation plan.”

According to NRDC, the primary air pollutant from fuel-grade ethanol plants is particulate matter (soot), but other emissions may include volatile organic compounds and greenhouse gases such as nitric oxide, carbon monoxide and sulfur dioxide. Longstreth said NRDC has members in Indiana who’ve complained about emissions from ethanol plants.

The Office of Environmental Adjudication within IDEM determined that when the agency issued permits to some plants in 2010, it should have categorized them as chemical process plants. A Marion Superior judge reversed that finding, but the Court of Appeals reversed the trial court, holding that the state improperly permitted plants in Cloverdale, Marion and North Manchester when, following EPA guidance, it didn’t classify them as chemical process plants.

But Betsy Zlatos, program counsel for the Office of Air Quality at IDEM, said the agency is in a Catch-22. IDEM did file a proposed revision with the EPA that adopted the federal agency’s guidance saying fuel-grade ethanol plants don’t

have to be treated as chemical process plants. Zlatos said the EPA has been sitting on the state’s request for almost two years.

“We’re at the mercy of the approval system,” Zlatos said. She confirmed the department will ask the Supreme Court to grant transfer in the case, and other attorneys familiar with the suit say the ethanol plant operators also are likely to appeal.

“We’re hoping the Supreme Court will get a feel for what’s going on. We want to follow the law,” she said, noting that IDEM did everything it was required to do and shouldn’t be penalized because the EPA dragged its feet on a plan adopting its own language.

Nevertheless, Judge Melissa May wrote for the Court of Appeals panel that without approval from the EPA, the state could not issue permits as it did.

“The issue before us is whether the State could properly exclude fuel-grade ethanol production plants from the category of ‘chemical process plants’ without Environmental Protection Agency (EPA) approval of a modification to the Indiana State Implementation Plan (SIP). As it could not, the ethanol plants remain ‘chemical process plants,’ and we must reverse the trial court,” May wrote.

The opinion also noted the EPA’s 2007 guidance on ethanol facilities is the subject of federal litigation in the D.C. Circuit Court. That IDEM promulgated a new rule and submitted it to the feds “was not enough – EPA approval … was required,” May wrote for the Court of Appeals.

Longstreth said EPA is taking a fresh look at emissions standards for ethanol plants.

“In part, the issue is about pollution from these plants, but also the issue is to make sure the system of cooperative federalism between EPA and the states are acting together works,” Longstreth said.

ethanolAttorneys representing the plant operators in the case did not respond to requests for comment. But Frank Deveau, co-chair of Taft Stettinius & Hollister LLP’s environmental practice, said he believes the plant operators will appeal.

“It seems like the Court of Appeals may have been hypertechnical in its enforcement of procedures,” said Deveau, who isn’t involved in this case but has experience representing ethanol plant operators in the sighting process. “I don’t think this is going to be left at the 100-ton limit.”

Some other states aren’t required to go through the state implementation plan process as Indiana does and, therefore, can rely directly on EPA rules and guidance when approving ethanol plants. Deveau said that if the Court of Appeals opinion were to stand, it could have a negative effect on the industry in Indiana.

“Costs would increase such that the industry, if I was looking to locate a facility, I would go to a different state and just go by the EPA rule,” he said.

Zlatos agreed, saying the ruling “puts ethanol plants in our state at a distinct disadvantage.”

Longstreth argued those concerns are overstated. “In our experience, many ethanol plants have operated many years in Indiana under the (100-ton) threshold and should be able to operate under that threshold.

“If it’s a larger plant, they just have to make sure they’re employing the best pollution controls,” he said.•

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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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