CleanCOALition v. TXU POWER

• Decision Date: 21 July 2008
• Docket Number: No. 07-50685.,07-50685.
• Parties: CLEANCOALITION; Robertson County: Our Land Our Lives, Plaintiffs-Appellants, v. TXU POWER, doing business as TXU Generation Company LP; Oak Grove Management Company LLC; TXU Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

536 F.3d 469

CLEANCOALITION; Robertson County: Our Land Our Lives, Plaintiffs-Appellants, v. TXU POWER, doing business as TXU Generation Company LP; Oak Grove Management Company LLC; TXU Corporation, Defendants-Appellees.

No. 07-50685.

United States Court of Appeals, Fifth Circuit.

July 21, 2008.

Frederick W. Addison, III (argued), Nolan Cornelius Knight, Munsch, Hardt, Kopf & Harr, Dallas, TX, for Plaintiffs-Appellants.

Keith W. Lapeze, Catherine B. Smith, Kristie Michelle Tice, Vinson & Elkins, Houston, TX, Michael W. Dixon, Haley & Olson, Waco, TX, for Defendants-Appellees.

Before REAVLEY, SMITH and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

This case of first impression involves the scope of citizen-suit jurisdiction under the Clean Air Act ("CAA"). See 42 U.S.C. § 7604(a). Plaintiffs-Appellants filed suit to enjoin Defendants-Appellees from constructing a pulverized coal-fired power plant in their community, alleging various violations of the CAA preconstruction permit process. The district court dismissed this case on the ground that, inter alia, neither of the asserted bases for subject matter jurisdiction, §§ 7604(a)(1) and 7604(a)(3), provides for jurisdiction in this case. For the reasons stated herein, we agree and, therefore, affirm the judgment of the district court.

I. BACKGROUND FACTS

CleanCOALition and Robertson County: Our Land, Our Lives (collectively "Appellants") are environmental interest groups whose members are concerned with environmental health issues, including air quality. TXU Power, Oak Grove Management LLC, and TXU Corporation (collectively "TXU") are utility entities that have proposed the construction of a pulverized coal-fired power plant in Robertson County, Texas. Members of Appellants reside in Robertson County and allege they will be adversely affected by emissions from the plant.

On July 27, 2005, TXU applied for a preconstruction permit with the Texas Commission on Environmental Quality ("TCEQ"), which regulates the preconstruction authorization process for the State of Texas under the CAA's Prevention of Significant Deterioration ("PSD") Program. See 42 U.S.C. § 7401, et seq. On February 21, 2006, the TCEQ completed a technical review of TXU's application and issued a preliminary decision and draft permit. TXU requested the TCEQ to refer the application to the State Administrative Office of Hearings ("SOAH") for a hearing to determine whether it complied with all relevant statutory and regulatory requirements. One of the Appellants participated in this hearing. On August 23, 2006, the SOAH issued a Proposal for Decision approving the permit, subject to final review by the TCEQ.

On December 1, 2006, after expiration of a 60-day written notice,¹ Appellants filed suit against TXU alleging that its permit application does not comply with requirements of the PSD Program. Specifically, Appellants allege that (1) TXU is violating preconstruction emissions standards and limitations mandated by the CAA; and (2) TXU intends to construct its proposed plant without a CAA-compliant permit. Appellants seek, inter alia, (1) declaratory relief that TXU is in violation of the CAA; (2) temporary and permanent injunctive relief prohibiting the construction of the plant; and (3) an order that TXU comply with the preconstruction requirements of the PSD Program. They also seek an assessment of civil penalties against TXU in the amount of $27,500.00 per day for each violation.

On December 21, 2006, TXU filed a motion to dismiss based on jurisdictional, justiciability, and abstention grounds. On May 21, 2007, the district court granted the motion to dismiss. Specifically, the district court held that (1) Section 7604(a)(1) does not authorize citizen suits to redress alleged pre-permit, preconstruction, pre-operation CAA violations; (2) Section 7604(a)(3) of the CAA does not authorize preconstruction citizen suits against entities that either have obtained a permit or are in the process of doing so; (3) Appellants failed to present a live case or controversy because the state permit process is still ongoing; and (4) even if it had subject matter jurisdiction, the district court would abstain from exercising it pursuant to Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943) because timely and adequate state court review was available and the exercise of federal review would disrupt state efforts to establish a coherent policy with respect to a matter of substantial public concern. Appellants filed a timely notice of appeal.²

II. STATUTORY AND REGULATORY FRAMEWORK

Congress enacted the 1970 Amendments to the CAA to establish "a comprehensive national program that made the States and the Federal Government partners in the struggle against air pollution." GM Corp. v. United States, 496 U.S. 530, 532, 110 S.Ct. 2528, 110 L.Ed.2d 480 (1990). The 1970 Amendments indicate, however, that although "federal financial assistance and leadership is essential for the development of cooperative Federal, State, regional, and local programs to prevent and control air pollution," see 42 U.S.C. § 7401(a)(4), "air pollution prevention (that is, the reduction or elimination, through any measures, of the amount of pollutants produced or created at the source) and air pollution control at its source is the primary responsibility of States and local governments." See 42 U.S.C. § 7401(a)(3). Thus, while the Amendments assign the Environmental Protection Agency ("EPA") the responsibility for "prescribing a national primary ambient air quality standard and a national secondary ambient air quality standard" for certain pollutants, see 42 U.S.C. § 7409(1)(A), they assign the States the primary responsibility for "assuring air quality within the entire geographic area comprising such State by submitting an implementation plan for such State which will specify the manner in which national primary and secondary ambient air quality standards `NAAQS' will be achieved and maintained within each air quality control region in such State." See 42 U.S.C. § 7407(a); see also 42 U.S.C. § 7410(a)(1) ("Each State shall ... adopt ... a plan which provides for implementation, maintenance, and enforcement of such primary... and secondary standard in each air quality control region (or portion thereof) within such State."). They further mandate that each State implementation plan ("SIP") include a permit program. See 42 U.S.C. § 7410(a)(2)(C). In Texas, the TCEQ administers the State CAA permit program.³

In 1977, further amendments were made to the CAA in which Congress enacted the PSD Program, see 42 U.S.C. §§ 7470-7492, because the then-existing EPA New Source Performance Standards did too little to "achieve the ambitious goals of the 1970 Amendments." Envtl. Def. v. Duke Energy Corp., ___ U.S. ___, 127 S.Ct. 1423, 1429, 167 L.Ed.2d 295 (2007) (citation omitted). Thus, the 1977 Amendments "gave added protection to air quality in certain parts of the country `notwithstanding attainment and maintenance of' the NAAQS." Id. at 1427 (quoting 42 U.S.C. § 7470(1)). They also "assured that any decision to permit increased air pollution in any area to which this section applies is made only after careful evaluation of all the consequences of such a decision and after adequate procedural opportunities for informed public participation in the decisionmaking process." 42 U.S.C. § 7470(5). To ensure CAA compliance, Congress mandated the issuance of PSD permits before construction of any "major emitting facility." See 42 U.S.C. § 7475(a)(1).

Under the 1977 Amendments — similar to the 1970 Amendments — "states have the primary role in administering and enforcing the various components of the PSD program." ADEC v. EPA, 540 U.S. 461, 491, 124 S.Ct. 983, 157 L.Ed.2d 967 (2004) (quoting 57 Fed.Reg. 28,095 (1992)). However, Congress has set forth explicit substantive and procedural requirements that must be met prior to the construction of any major emitting facility. The substantive requirements include, inter alia, a demonstration that: (1) "emissions from construction or operation of such facility will not cause, or contribute to, air pollution in excess of any" applicable emission standards; (2) "the proposed facility is subject to the best available control technology for each pollutant;" (3) the facility complies with any applicable Class I area protection requirements; (4) "there has been an analysis of any air quality impacts projected for the area as a result of growth associated with such facility;" and (5) "the person who owns or operates, or proposes to own or operate, a major emitting facility for which a permit is required under this part agrees to conduct such monitoring as may be necessary to determine the effect which emissions from any such facility may have, or is having, on air quality in any area which may be affected by emissions from such source." See 42 U.S.C. §§ 7475(a)(3)-(7), 7475(d). The procedural requirements include, inter alia, a public hearing and an opportunity for any interested person to appear and submit comments on a proposed permit. See 42 U.S.C. § 7475(a)(2). The EPA further "interprets existing law and regulations to require an opportunity for state judicial review of PSD permit actions under approved PSD SIPs 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." Approval and Promulgation of Air Quality Implementation Plans; Commonwealth of Virginia — Prevention of Significant Deterioration Program, 61 Fed.Reg. 1880 (Jan. 24, 1996) (to be codified at 40 C.F.R. pt. 52) (The EPA).

The State of Texas has an EPA-approved PSD Program. See Approval and Promulgation of Implementation Plans; Texas; Revisions to Regulations for Control of Air Pollution...