NEW ORLEANS (CN) — Fifth Circuit judges got feisty over air pollution Monday during a hearing on whether a polluting coal-fired electric plant in Texas should be allowed to continue to operate without permits, as it has for 11 years.
The three-judge panel listened, at times in apparent disbelief, to arguments from the federal government and the Sierra Club about Luminant’s Martin Lake power plant in East Texas, one of the nation’s dirtiest sources of power. The coal-fired electric generating plant in Tatum, southwest of Marshall, has been operating without permits and without the Best Available Control Technology to limit emissions of sulfur dioxide and nitrogen oxides for more than a decade.
As issue was whether Luminant should have to apply for the required permits and slash its emissions. The United States and the Sierra Club are both appellants here, against Luminant Generation Co.
U.S. District Judge James E. Kinkeade in Dallas denied their request for an injunction, saying that since the pollution has been continuous since 2006, the statute of limitations has expired and nothing can be done.
Senior Fifth Circuit Judge E. Grady Jolly seemed perplexed by that argument.
“There are many ways to skin a cat. Why do it this way?” he asked at the beginning of the hearing. “If they’re in violation of standards, you have no other way to go about it? Why don’t you go through other doors? That’s all I’m asking.
“I’m asking, do they get to pollute the air all they want? You’re telling me that these facilities continue to pollute, and there just isn’t anything you can do about it?”
Robert Lundman, representing the federal government, replied: “Any place grandfathered in gets to pollute and pollute until they upgrade; then they have to follow standards.”
In this case, Lundman said, Luminant purposely did not apply for the proper permits after upgrading.
“Their argument is: ‘Hey, hey, we didn’t apply for a permit, so you can’t get us,’” Lundman said.
A permit, he said, would have required Luminant reduce pollution by 90 percent, “but they didn’t apply for one.”
The Northern District of Texas, where the lawsuit was filed, “didn’t allow for an injunction,” Lundman said. He said the judge made that decision in error.
“An injunction can be applied for whenever? Even going 20 years back?” asked Fifth Circuit Judge Jennifer Walker Elrod.
“This case doesn’t go 20 years back,” Lundman replied. “But even if it did, the Clean Air Act gives no statute of limitations.”
Elrod asked: “Why do you get to sleep for five years and then apply for injunctive relief?”
Sierra Club attorney Joshua Smith said: “Courts have clear authority to apply injunctive relief for past harms that continue to cause damage.”
He said the district court, in refusing an injunction, “completely ignored the relief allowed under 7413 B, which allows for relief against anyone who has violated an act.”
Smith said that even if 50 years had passed, “the court still has broad authority to fashion relief.”
Jolly, an appointee of President Ronald Reagan, seemed to think a statute of limitations would still apply.
“No one likes polluting,” he said, “but there are rules you’ve got to play by.”
Smith said it “was Congress’s clear intent that the statute of limitations wouldn’t apply under the Clean Air Act.”
He said the injunction would work by forcing Luminant to agree to new, lower levels of pollution.
Elrod, who sat on the bench of the 190th civil court in Harris County under former Governor Rick Perry before President George W. Bush seated him on the Fifth Circuit, appeared to take issue with this.
“The state is not here telling them they have to apply for a permit, right?” Elrod asked. “But you’re standing here saying they need to go to the state.”
Luminant was represented by P. Stephen Gidiere with Balch & Bingham in Birmingham, Alabama.
“Judge Jolly, you asked the question, and there are many ways to skin a cat,” Gidiere said. “The EPA has all the tools it needs to timely enforce their emissions.”
The U.S. Environmental Protection Agency need not take the case to court, Gidiere said. Permits come up for review every five years, and should be considered then.
“But there must be some advantage to [the United States and the Sierra Club] doing it this way?” Jolly asked.
Yes, there is, Gidiere said. “They are seeking back-penalties worth hundreds of millions of dollars.”
“Are they are just trying to shut this down?” Elrod asked.
“If they shut it down, do they still get the penalties?”
“The Clean Air Act is a balance between economic factors and environmental regulation,” Gidiere said.
“Has the state weighed in on this in any way?” Elrod asked: “‘Hey, you need to update with us,’ or anything?”
“Absolutely not,” Gidiere said. “Most of the modifications occurred before the company became Luminant.” The plant at issue has been operating since 1977.
Gidiere asked the judges: “We would like for you to hold up that there is no injunctive relief available for a past violation.”
During rebuttal, Lundman, on behalf of the United States, said the EPA had to file a lawsuit in order to attempt to enforce permit limits.
“We can’t get those standards in a permit without filing a suit,” he said.
“In 2013, when they applied for a renewal, you could not have requested that?” Elrod asked.
“There is no way to go back in the past and apply for a permit for something that has already been done,” Elrod said. “They already have a permit.”
“No, they don’t,” Lundman said.
Fifth Circuit Judge James L. Dennis, a President Bill Clinton appointee, also sat on the panel, which did not indicate when a ruling may be expected.
Between 2005 and 2009 Luminant modified its Martin Lake power plant in violation of the Clean Air Act, according to the Sierra Club’s 2013 lawsuit in Dallas.
The Sierra Club claims that when Martin Lake modified its electric generating units it lost its grandfathered-in status under the Clean Air Act.
Plaintiffs claimed that since the pollution emitted under Luminant’s plant was ongoing, that the damages were ongoing, and thus are not restricted by a statute of limitations. They cited United States v. Marine Shale Processors, 81 F.3d 1329 (5th Cir. 1996), and Nat’l Parks Conservation Ass’n Inc. v. Tennessee Valley Authority, 480 F.3d 410 (6th Cir., 2007). In both cases, the courts found ongoing violations.
But Judge Kinkeade in Dallas said that Louisiana and Tennessee law did not apply to the Texas case.
“The Texas regulation at issue in this case does not specify” that a plant must do anything upon upgrading its construction, Kinkeade ruled, citing U.S. Commonwealth v. EME Homer City Generation, 727 F. 3d at 284-85. “There is nothing in the Clean Air Act that indicates the violations are ongoing, and the violations were complete when modification began” without a permit, he found.
Kinkeade ruled that claims for an injunction were barred by the statute of limitations. He found that because “Congress did not provide for injunctive relief for past violations of the Clean Air Act but did provide a remedy for Prevention of Significant Deterioration violations before construction or modification, the Court assumes Congress intended not to provide relief for past violations. Homer, 727 F. 3d at 299.”
After the hearing, Sierra Club attorney Smith said the reason it took several years to bring the lawsuit against Luminant was that the EPA did not have all the emissions information Luminant had. If it had, he said, it would not have taken so long to determine how much pollution was going into the air.
He called it incorrect to say that Luminant inherited the facility from a previous owner. He said there had been no “change of hands, just a change of name.”
Smith said Luminant emits “many hundreds of thousands of dangerous substances a year.”
Luminant is among the top two polluters in Texas, and among the top 10 in the United States.
And, Smith said, injunctive relief claims brought as a matter of public health are not barred by statutes of limitation.
Gidiere, who represented Luminant, declined to discuss the case after the hearing.