16 Front St., L.L.C. v. Miss. Silicon, L.L.C.

• Decision Date: 30 March 2018
• Docket Number: No. 16-60050,16-60050
• Parties: 16 FRONT STREET, L.L.C.; C. Richard Cotton, Plaintiffs–Appellants, v. MISSISSIPPI SILICON, L.L.C.; Gary C. Rikard, Executive Director, Mississippi Department of Environmental Quality, In His Official Capacity and As Executive Director of the Mississippi Environmental Quality Permit Board, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

886 F.3d 549

16 FRONT STREET, L.L.C.; C. Richard Cotton, Plaintiffs–Appellants,

v.MISSISSIPPI SILICON, L.L.C.; Gary C. Rikard, Executive Director, Mississippi Department of Environmental Quality, In His Official Capacity and As Executive Director of the Mississippi Environmental Quality Permit Board, Defendants–Appellees.

No. 16-60050

United States Court of Appeals, Fifth Circuit.

FILED March 30, 2018

Deborah Jennings, Esq., DLA Piper, L.L.P. (U.S.), Washington, DC, David Ronald Musgrove, Michael Shelton Smith, II, Esq., Musgrove Smith Law, Jackson, MS, for Plaintiff–Appellant 16 Front Street, L.L.C.

Deborah Jennings, Esq., DLA Piper, L.L.P. (U.S.), Washington, DC, David Ronald Musgrove, Musgrove Smith Law, Jackson, MS, for Plaintiff–Appellant C. Richard Cotton.

Martin Thomas Booher, Baker & Hostetler, L.L.P., Cleveland, OH, Rebecca Lee Wiggs, Esq., Attorney, Watkins & Eager, P.L.L.C., Jackson, MS, Mark Wendell DeLaquil, Esq., Baker & Hostetler, L.L.P., Washington, DC, Keith Whiteman Turner, Watkins & Eager, P.L.L.C., Jackson, MS, for Defendant–Appellee Mississippi Silicon, L.L.C.

Lee Davis Thames, Jr., Esq., Special Assistant Attorney General, Office of the Attorney General, Donna J. Hodges, Senior Attorney, Department of Environmental Quality for the State of Mississippi, Jackson, MS, for Defendant–Appellee Gary C. Rikard.

Before CLEMENT, PRADO, and OWEN, Circuit Judges.

PRISCILLA OWEN, Circuit Judge:

16 Front Street, LLC and Richard Cotton (collectively, Front Street) filed a citizen suit under the Clean Air Act (CAA), 42 U.S.C. § 7604, to enjoin Mississippi Silicon from constructing a silicon plant. They later amended their complaint to include Gary C. Rikard, in his official capacity as Executive Director of the Mississippi Department of Environmental Quality and the Mississippi Environmental Quality Permit Board (collectively, MDEQ). The district court dismissed the claim against Mississippi Silicon for lack of subject matter jurisdiction. The court then dismissed the claim against MDEQ, determining that the time-of-filing rule barred amending a complaint over which the court lacked jurisdiction. We affirm in part, reverse in part, and remand for further proceedings.

I

The CAA prohibits construction of any "major emitting facility" unless the requirements of the Prevention of Significant Deterioration (PSD) Program are met.¹ The PSD program requires that "a permit has been issued for such proposed facility in accordance with this part setting forth emission limitations for such facility which conform to the requirements of this part."² The PSD program also includes other substantive and procedural requirements, such as a demonstration that the facility will meet emissions standards and a public hearing on the permit.³

This court has previously described the history and intent of the CAA’s PSD program.⁴ Importantly, the CAA makes "the States and the Federal Government partners in the struggle against air pollution."⁵ Though " ‘[s]tates have the primary role in administering and enforcing the various components of the PSD program[,]’ ... Congress has set forth explicit substantive and procedural requirements that must be met prior to the construction of any major emitting facility."⁶ States must design a plan for the enforcement and implementation of the CAA and submit it to the Environmental Protection Agency (EPA) for approval.⁷ The EPA "interprets existing law and regulations to require an opportunity for state judicial review of PSD permit actions ... by permit applicants and affected members of the public in order to ensure an adequate and meaningful opportunity for public review and comment on all issues within the scope of the permitting decision, including environmental justice concerns and alternatives to the proposed source."⁸ The EPA approved Mississippi’s CAA state implementation plan.⁹

In August 2013, Mississippi Silicon applied to MDEQ for a PSD permit to construct a silicon metal manufacturing plant in Burnsville, Mississippi. MDEQ issued a draft permit, making it available for public notice and comment by posting it on the MDEQ website on October 23, 2013. The following day, it published a notice of the comment period in a local paper, soliciting public comments through November 22, 2013. This notice advised that a public hearing would "be held if the Permit Board finds a significant degree of public interest." MDEQ also made certain materials relating to the permit available at the Burnsville Public Library. Only the EPA and United States Department of Agriculture commented on the draft permit. After the comment period ended, MDEQ issued a final permit for the Burnsville Plant, which the Mississippi Permit Board voted to accept in December of 2013.

Front Street filed this suit on September 29, 2014 under the citizen suit section of the CAA, 42 U.S.C. § 7604(a)(3). This section states that "any person may commence a civil action on his own behalf ... against any person who proposes to construct or constructs any new or modified major emitting facility without a permit required under [the PSD program]."¹⁰ Front Street argued that the permit was not "issued in accordance with PSD," because Mississippi Silicon and MDEQ did not "meet all applicable procedural requirements" and that, consequently, Mississippi Silicon was constructing a new major emitting facility without the required PSD permit. Front Street alleged various procedural deficiencies, including: (1) a public comment period of only 29 days (instead of 30); (2) inadequate materials available for public review; (3) insufficient time to review the materials; and (4) the lack of a public hearing.

Front Street moved for a temporary restraining order and preliminary injunction. The district court denied the restraining order due to uncertainty about subject matter jurisdiction. The court called for additional briefing on subject matter jurisdiction, and pointed out that MDEQ was "noticeably absent" from the proceedings and that it was unclear what relief could be obtained if MDEQ were not a party.

Four months after filing, Front Street amended the complaint joining Gary C. Rikard, in his official capacity as Executive Director of MDEQ and its Permit Board, as an additional defendant. The amended complaint asserted that there was jurisdiction over the claim against MDEQ under 42 U.S.C. § 7604(a)(1), which allows an action against any "governmental instrumentality or agency ... who is alleged to have violated ... or to be in violation of [ ] an emission standard or limitation under [the CAA]."¹¹ The CAA requires plaintiffs to give states 60 days’ notice prior to commencing an action under § 7604(a)(1).¹² Front Street sent the required notice to MDEQ on November 14, 2014, and filed the amended complaint on January 23, 2015.

The district court dismissed Front Street’s claim against Mississippi Silicon for lack of subject matter jurisdiction after determining that the claim did not meet the requirements of the CAA’s citizen suit section. The court later dismissed without prejudice the claim against MDEQ for lack of subject matter jurisdiction. The district court concluded that "[b]ecause this Court lacked jurisdiction at the time the original complaint was filed, the time-of-filing rule compels the conclusion that this Court lacks jurisdiction over the amended complaint."

II

We first consider Front Street’s claim against Mississippi Silicon under § 7604(a)(3). We review de novo the district court’s dismissal of Mississippi Silicon’s claim for lack of subject matter jurisdiction.¹³

This court previously analyzed the language of § 7604(a)(3) in CleanCOALition v. TXU Power .¹⁴ In that case, environmental interest groups filed a citizen suit alleging that the defendant’s permit application did not comply with the requirements of the PSD program.¹⁵ The defendant had not only applied for a permit, but had since successfully obtained one.¹⁶ We agreed with the district court’s interpretation of § 7604(a)(3)"as authorizing citizen suits when an entity proposes to construct or constructs a facility without a permit whatsoever."¹⁷ We rejected the argument that "without a permit" meant "without a permit that complies with the CAA" because we "decline[d] to rewrite the plain language of the statute."¹⁸ We held that " § 7604(a)(3) does not authorize preconstruction citizen suits against facilities that have either obtained a permit or are in the process of doing so."¹⁹

Front Street contends that Mississippi Silicon is "without a permit" because a "purported PSD permit issued in violation of the [PSD program] requirements" is not a PSD permit. Front Street argues that the violations of the permitting process render Mississippi Silicon’s permit not a PSD permit, citing language from CleanCOALition labeling PSD permit requirements "preconditions for granting a preconstruction permit."²⁰ However, in CleanCOALition , we rejected the argument that "without a permit" meant "without a permit that complies with the CAA."²¹ We are bound by that decision and therefore reject the argument that "without a permit" means "without a permit that complies with procedural requirements."

Mississippi Silicon obtained a PSD permit and has since completed construction of the plant. Because § 7604(a)(3) does not authorize suits "against facilities that have either obtained a permit or are in the process of doing so,"²² it does not apply here. Accordingly, we affirm the district court’s dismissal of the claim against Mississippi Silicon.

III

We turn to the dismissal of the claims against MDEQ for lack of subject matter jurisdiction, which turns only on the time-of-filing rule. We emphasize that no party contends that the district court had jurisdiction over claims against Mississippi Silicon by virtue of the amended complaint that added MDEQ as a defendant. The only question is whether the district court had subject matter jurisdiction over the claims against MDEQ simply because it was not...