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.”