Grand Canyon Trust v. Tucson Elec. Power Co., 03-15584.
| Decision Date | 02 September 2004 |
| Docket Number | No. 03-15584.,03-15584. |
| Citation | 391 F.3d 979 |
| Parties | GRAND CANYON TRUST, Plaintiff-Appellant, v. TUCSON ELECTRIC POWER COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Reed Zars, Laramie, WY, for the plaintiff-appellant.
Henry V. Nickel, Hunton & Williams, Washington, D.C., for the defendant-appellee.
Appeal from the United States District Court for the District of Arizona; Earl H. Carroll, District Judge, Presiding. D.C. No. CV-01-02189-EHC.
Before: T.G. NELSON, W. FLETCHER, and BERZON, Circuit Judges.
1. On Slip Op. 12691, in between the carryover paragraph (which ends with "relatively lax pollution rules.") and the first full paragraph (which begins with "Tucson Electric was well aware ..."), the following paragraph is inserted:
Specifically, the 1978 Regulations provided:
Approval to construct shall become invalid if construction is not commenced within 18 months after the receipt of such approval, if construction is discontinued for a period of 18 months or more, or if construction is not completed within a reasonable time. The Administrator may extend the 18-month time period upon a satisfactory showing that an extension is justified.
40 C.F.R. § 52.21(s)(2) (1978) (emphasis added).1 Like the district court, we read this language to provide that a permit automatically becomes invalid in the enumerated circumstances unless the administrator exercises discretionary authority to extend the permit. On a natural reading of the language, administrative action is only required to forestall invalidation of a permit. No agency action is required to invalidate a permit if construction is not timely commenced. See Roosevelt Campobello Int'l Park Comm'n v. EPA, 684 F.2d 1034, 1037 (1st Cir.1982) ().
1. The 1975 Regulations, which were in effect at the time the permit was issued, are, in all respects relevant to this case, the same as the 1978 Regulations. They provided that 40 C.F.R. § 52.21(e)(3) (1975) (emphasis added).
2. On Slip Op. 12700 at line 2, "the opportunity" is inserted between "allowed Tucson Electric ..." and "to recover some or all...." The full sentence now reads: "Rather, it appears that Grand Canyon's delay worked to the benefit of Tucson Electric because it allowed Tucson Electric the opportunity to recover some or all of its investment in Springerville Units 1 and 2 before this suit was filed."
With these changes, the panel votes to deny the petition for rehearing. Judges W. Fletcher and Berzon vote to deny the petition for rehearing en banc; and Judge T.G. Nelson so recommends.
The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.
The petition for rehearing and the petition for rehearing en banc, filed September 23, 2004, are DENIED. No subsequent petitions for panel or en banc rehearing will be entertained.
OPINIONIn December 1977, Tucson Electric Power Company received a permit from the Environmental Protection Agency ("EPA") to build a coal-powered electric generating plant near the town of Springerville, Arizona (the "Springerville plant," or "Springerville"). Twenty-four years later, the Grand Canyon Trust ("Grand Canyon") brought this action against Tucson Electric to enforce the federal Clean Air Act. Grand Canyon alleges that Tucson Electric's 1977 construction permit for Springerville was invalid for several related reasons and, therefore, that Tucson Electric has been operating Springerville for many years in violation of the Clean Air Act. The district court granted partial summary judgment to Tucson Electric on the merits of one of Grand Canyon's claims, and subsequently granted summary judgment to Tucson Electric on the entire action based on the equitable defense of laches.
Grand Canyon appeals both orders. Tucson Electric has moved to strike Grand Canyon's appeal of the partial summary judgment order. We deny Tucson Electric's motion to strike, we vacate the order granting partial summary judgment, we reverse the judgment dismissing the entire action based on laches, and we remand for further proceedings.
Founded in 1985, Grand Canyon is a non-profit environmental organization dedicated to conserving the natural resources of the "Colorado Plateau." The Colorado Plateau is not actually a plateau, but rather an enormous high basin centered roughly at the "four corners" where Colorado, Utah, Arizona, and New Mexico meet. The Plateau is filled with plateaus, canyons, buttes, mesas, natural arches and other geological features. It contains over twenty National Parks, National Monuments, National Landmarks, and National Recreation Areas. Grand Canyon, Bryce Canyon, and Zion National Parks are all within the Plateau.
Tucson Electric is an electric utility company that serves the Tucson, Arizona area. It is the sole owner and operator of the Springerville plant, located within the Colorado Plateau. Grand Canyon asserts that Springerville is an antiquated power plant that produces a large amount of pollution, thereby harming the air quality in the Colorado Plateau. Grand Canyon also asserts that Springerville's emissions would be significantly reduced if it were upgraded and operated using current technology.
In December 1977, as it was required to do by the Clean Air Act and EPA regulations then in effect, Tucson Electric applied to the EPA for a permit to construct the Springerville plant. The resulting permit (the "1977 Permit") authorized the construction of two 350-megawatt coal-fired steam electric generating units ("Units 1 and 2"). At about this time, Congress amended the Clean Air Act. Among other things, the amendments required that all new sources of air pollution use the most current, state-of-the-art pollution controls. This requirement is known as the "best available control technology" ("BACT") requirement. 40 U.S.C. § 52.21(b)(10) (1978) (now codified at 42 U.S.C. § 7475(a)(4)).
In June 1978, the EPA incorporated the BACT requirement into its regulations (the "1978 Regulations"), but "grandfathered" permits that had already been issued, such as the 1977 Permit for Springerville. The 1978 Regulations provided that already-existing permits would remain valid — and therefore not subject to the BACT requirement — if construction commenced by March 19, 1979. 40 C.F.R. § 52.21(i)(2)(ii) (1978). If, however, construction commenced after that date, the old permit would no longer be valid, and a new one — subject to the BACT requirement — would have to be obtained. Id. §§ 52.21(i)(2), (j)(2). The 1978 Regulations provided that discontinuing construction for a period of more than eighteen months, or failing to complete construction within a "reasonable" amount of time, had the same effect as failing to commence construction by March 19, 1979. Id. § 52.21(i)(2)(iii). The apparent purpose of the regulations was to preserve settled expectations with respect to already-issued permits, while at the same time to prevent anyone from stock-piling construction permits previously granted under the former, relatively lax pollution rules.
Specifically, the 1978 Regulations provided:
Approval to construct shall become invalid if construction is not commenced within 18 months after the receipt of such approval, if construction is discontinued for a period of 18 months or more, or if construction is not completed within a reasonable time. The Administrator may extend the 18-month time period upon a satisfactory showing that an extension is justified.
40 C.F.R. § 52.21(s)(2) (1978) (emphasis added).1 Like the district court, we read this language to provide that a permit automatically becomes invalid in the enumerated circumstances unless the administrator exercises discretionary authority to extend the permit. On a natural reading of the language, administrative action is only required to forestall invalidation of a permit. No agency action is required to invalidate a permit if construction is not timely commenced. See Roosevelt Campobello Int'l Park Comm'n v. EPA, 684 F.2d 1034, 1037 (1st Cir.1982) ().
Tucson Electric was well aware of the importance of "commencing construction" on Springerville by March 19, 1979. A February 1978 letter from Tucson Electric to the EPA asserted that it had "commenced construction" on Springerville on January 30, 1978, because it had entered into a contract for construction of the boilers for Springerville Units 1 and 2 on that date. In another letter to the EPA dated March 14, 1979 — just five days before the grandfathering deadline — Tucson Electric listed "the main activities" underway with respect to the construction of Springerville. It is undisputed that Tucson Electric completed construction of Springerville Units 1 and 2 in 1985 and 1990, respectively, and that the Units have operated ever since.
In spring 2001, Tucson Electric publicly announced a plan (the "Netting Plan") to construct two new coal-fired units at Springerville ("Units 3 and 4"). Under the Netting Plan, Tucson Electric sought to avoid the extensive review the EPA applies to new sources and major modifications. Under the plan, the EPA would not analyze...
To continue reading
Request your trial
-
Sierra Club v. Franklin County Power of Illinois
...because that's not what section 7604(a)(3) requires. In a circuit case referenced by both parties, Grand Canyon Trust v. Tucson Elec. Power Co., 391 F.3d 979, 986 (9th Cir.2004), the Ninth Circuit held that a district court had jurisdiction over a citizen suit that challenged the validity o......
-
United States v. Ameren Mo.
...Ninth Circuit, BACT requires use of "the most current, state-of-the-art pollution controls" available. Grand Canyon Trust v. Tucson Elec. Power Co., 391 F.3d 979, 983 (9th Cir. 2004). "[F]ailure to consider all available control alternatives in a BACT analysis constitutes clear error," unle......
-
Romoland School Dist. v. Inland Empire Energy
...for the "automatic cancellation of already-issued construction permits" if construction did not commence by the deadline. 391 F.3d 979, 984-85 (9th Cir.2004). This regulation thus imposed an implicit condition on the defendant's permit with which the Grand Canyon plaintiffs alleged the defe......
-
Equal Emp't Opportunity Comm'n v. Timeless Investments Inc. Dba Ez Trip Golden State Convenience, 1:08-cv-1469 AWI SMS
...v. Luby's Inc., 2005 WL 3560616, *7, 2005 U.S. Dist. LEXIS 38089, *20 (D.Ariz. Dec. 29, 2005); see also Grand Canyon Trust v. Tucson Elec. Power Co., 391 F.3d 979, 988 (9th Cir.2004); Alioto Fish, 623 F.2d at 88. In assessing delay, a court must consider the reasons for or causes of the del......
-
Annual Report On EEOC Developments - Fiscal Year 2021
...San dvik v. Alaska Packers Ass’n, 609 F.2d 969, 972 (9 th Cir. 1979)).325 Id. (citing Grand Ca nyon Trust v. Tucson Elec. Power Co., 391 F.3d 979, 988 (9th Cir. 2004)). Not ably, the court rejected the e mployer’s contention that a lengthy delay su ces to raise a rebuttal pres umption of p......
-
Enforcing Conservation Easements: The Through Line
...violation of the Federal Water Pollution Control Act not barred by laches or estoppel); Grand Canyon Tr. v. Tucson Elec. Power Co., 391 F.3d 979 (9th Cir. 2004) (assumed, without deciding, that laches is available as a defense against a private attorney general suing under the Clean Air Act......
-
Case summaries.
...their commitments as vaguely as possible in order to avoid constraint and reform." (22) Grand Canyon Trust v. Tucson Electric Power Co., 391 F.3d 979 (9th Cir. The Grand Canyon Trust (Trust) appealed from a district court order granting partial summary judgment on the merits and final summa......
-
2004 Ninth Circuit Environmental Review.
...Task Force v. United States Fish & Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) Grand Canyon Trust v. Tucson Electric Power Co., 391 F.3d 979 (9th Cir. Ocean Conservancy, Inc. v. National Marine Fisheries Service, 382 F.3d 1159 (9th Cir. 2004) National Wildlife Federation v. United S......