Sierra Club v. Entergy Ark. LLC
| Decision Date | 30 November 2020 |
| Docket Number | Case No. 4:18-cv-00854 |
| Citation | 503 F.Supp.3d 821 |
| Parties | SIERRA CLUB, et al., Plaintiffs v. ENTERGY ARKANSAS LLC, et al., Defendants |
| Court | U.S. District Court — Eastern District of Arkansas |
George E. Hays, Law Office of George Hays, Bellevue, WA, Naomi Kim Melver, Law Office of Naomi Kim Melver, Greenbank, WA, Richard H. Mays, Richard Mays Law Firm, PLLC, Little Rock, AR, for Plaintiffs.
Debra J. Jezouit, Pro Hac Vice, Baker Botts LLP, Timothy K. Webster, Pro Hac Vice, Sidley Austin LLP, Washington, DC, G. Alan Perkins, John F. Peiserich, PPGMR Law, PLLC, Kimberly Bennett, Pro Hac Vice, Susan Margaret Floyd, Pro Hac Vice, Entergy Services, Inc., Little Rock, AR, Micah Goodwin, Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., Rogers, AR, for Defendants.
Kristine G. Baker, United States District Judge Before the Court are motions to intervene filed by prospective intervenors the State of Arkansas (the "State"), ex rel. Arkansas Attorney General Leslie Rutledge ("Attorney General"), by and through the Consumer Utilities Rate Advocacy Division ("CURAD"), and the Arkansas Affordable Energy Coalition ("the Coalition") (Dkt. Nos. 17, 26). Plaintiffs Sierra Club and the National Parks Conservation Association ("NPCA") oppose CURAD and the Coalition's motions to intervene (Dkt. No. 35). Defendants Entergy Arkansas LLC ("Entergy Arkansas"), Entergy Power LLC ("Entergy Power"), and Entergy Mississippi LLC ("Entergy Mississippi") (collectively, "the Entergy Companies") also oppose CURAD and the Coalition's motions to intervene (Dkt. Nos. 34, 36). CURAD and the Coalition filed replies in further support of their motions (Dkt. Nos. 41, 42). Also before the Court are a motion to approve consent judgment filed by plaintiffs, a motion for abeyance and leave to file response filed by CURAD, and a motion for abeyance and for leave to file response to plaintiffs' motion to enter settlement agreement as a consent judgment filed by the Coalition (Dkt. Nos. 44; 45; 46).
Plaintiffs Sierra Club and the NPCA filed this action against Entergy Arkansas, Entergy Power, and Entergy Mississippi under the citizens suit provisions of the Clean Air Act ("CAA"), 42 U.S.C. §§ 7401 - 7671q, to enforce the national ambient air quality standards ("NAAQS") provisions of the CAA and its implementing regulations (Dkt. Nos. 1; 54). Plaintiffs allege that defendants violated the CAA and its implementing regulations because power plants located in Independence County, Arkansas (the "Independence" plant), and Jefferson County, Arkansas (the "White Bluff" plant), underwent "major modifications" without obtaining prevention of significant deterioration ("PSD") permits or modified Part 70 permits for such major modifications (Dkt. No. 54, ¶¶ 71-89). Plaintiffs assert that this Court has subject matter jurisdiction over the claims pursuant to 42 U.S.C. § 7604(a) and 28 U.S.C. § 1331 (Dkt. No. 54, ¶ 2). Plaintiffs set forth their claims in a 59-page amended complaint, explaining the regulatory, legal, and factual basis for their claims. They seek injunctive and declaratory relief and civil penalties, all of which plaintiffs claim are authorized pursuant to 28 U.S.C. §§ 2201 and 2202 and 42 U.S.C. §§ 7413, 7604(a) (Id. ). Plaintiffs maintain that, to the extent required by 42 U.S.C. § 7604(b), plaintiffs sent notices of intent to sue for violations of the CAA on January 10, 2018, and February 8, 2018, to defendants and all government officers required to receive such notice by 42 U.S.C. § 7604(b) and 40 C.F.R. § 54.2 (Id. , ¶ 4).
The NAAQS are regulated and enforced by a variety of federal and state statutes and regulations. As relevant here, each state is required to classify areas within their boundaries as attainment, nonattainment, or unclassifiable with respect to certain pollutants, including SO2 and NO2. Each state must adopt a state implementation plan ("SIP") that creates a prevention of significant deterioration program ("PSD program") and submit that SIP to the Environmental Protection Agency ("EPA") for approval; if the EPA does not approve the proposed SIP, then the EPA may propose a federal implementation plan ("FIP"). Under the CAA, PSD programs must prohibit the construction of a "major emitting facility" in attainment or unclassifiable areas unless such a facility has been issued a PSD permit and employs the "Best Available Control Technology" ("BACT").
Separately, Title V of the CAA, 42 U.S.C. §§ 7661 - 7661f, established an operating permit program ("Part 70 Operating Permit program") for certain sources, including "major sources" and any source required to have a permit under a PSD program. 42 U.S.C. § 7661a(a). Title V is implemented primarily by the states under EPA oversight. See Sierra Club v. Otter Tail Power Co. , 615 F.3d 1008, 1012 (8th Cir. 2010). "In states with EPA approved programs, Title V permits are issued by the state permitting authority but are subject to EPA review and veto." Id. The EPA has approved a SIP submitted by Arkansas containing a PSD program and a Part 70 Operating Permit program. 40 C.F.R. § 52.172.
In 1999, the EPA promulgated the Regional Haze Rule, which calls for state and federal agencies to work together to improve visibility in national parks and wilderness areas. 40 C.F.R. pt. 51. To implement the Regional Haze Rule, the EPA directed the states to submit a Regional Haze SIP meeting the requirements of the Regional Haze Rule. 40 C.F.R. § 51.308(b). Arkansas submitted a Regional Haze SIP to the EPA on September 23, 2008, and August 3, 2010, along with supplementation on September 27, 2011. 40 C.F.R. § 52.173(a). In March 2012, the EPA partially approved and partially disapproved of the proposed Regional Haze SIP. Id. In response, the EPA then finalized a Regional Haze FIP for Arkansas. Promulgation of Air Quality Implementation Plans; State of Arkansas; Regional Haze and Interstate Visibility Transport Federal Implementation Plan , 81 FR 66332-01 (September 27, 2016). Public utilities filed a petition for review of the Regional Haze FIP at the Eighth Circuit Court of Appeals, where certain portions of the Regional Haze FIP remain stayed. State of Arkansas, et al. v. EPA, et al. , No. 16-4270 (8th Cir. 2016).
The stakeholders—including plaintiffs and defendants—then began negotiating the content of a revised Regional Haze SIP that would replace the contested Regional Haze FIP. During this process, defendants filed comments indicating that they intend to cease combusting coal at White Bluff by the end of 2028 and that they "anticipated ceasing to combust coal at the Independence units by the end of 2030." (Dkt. No. 34-1, at 66, 68). The comments also explained that the "Lake Catherine Unit 4 will retire by the end of 2025 ...." (Id. , at 68).
As part of the Regional Haze SIP replacement process, Entergy Arkansas entered into an Administrative Order with the Arkansas Department of Environmental Quality ("ADEQ") in August 2018. This Order requires Entergy Arkansas to, among other things, permanently cease coal-fired operation at White Bluff no later than the end of 2028 (Id. , at 79). The Administrative Order also requires Entergy Arkansas to meet certain SO2 emission requirements at Independence and White Bluff (Id. ). On August 8, 2018, Governor Hutchinson transmitted a Revised Regional Haze SIP to the EPA, in which the SIP recognizes the "planned retirement of Entergy Lake Catherine, the planned cessation of coal-fired operations at Entergy White Bluff by the end of 2028, and the planned cessation of coal-fired operations at Entergy Independence by the end of 2030." (Id. , at 146).
According to the State:
Based on the State of Arkansas's decision to develop a new Regional Haze Rule State Implementation Plan to replace the Arkansas [Regional Haze Rule Federal Implementation Plan], the Eighth Circuit cases were stayed until the State of Arkansas developed its new plan. The State developed and submitted a new regional haze rule plan ("Revised RHR SIP") to EPA that did not require the installation of scrubbers at the White Bluff and Independence plants. This Revised RHR SIP became final and was approved by EPA effective October 28, 2019 ( 84 F.R. 51033 ), and the parts of the Arkansas RHR FIP relevant to the White Bluff and Independence plants were withdrawn ( 84 F.R. 51056 ). As a result, the issues in the Eighth Circuit case relating to White Bluff and Independence have now been dismissed as moot, including the Plaintiffs' separate petition for review in Eighth Circuit Case No. 16-4309....
The State also informs the Court that on March 25, 2019, plaintiffs filed an appeal of the State's Revised RHR SIP in the Circuit Court of Pulaski County, Arkansas, Sierra Club v. Arkansas Pollution Control & Ecology Commission , Case No. 60CV-19-1980, "seeking to invalidate the Revised RHR SIP on state law procedural grounds." (Dkt. No. 61, at 3). The State and the Coalition were permitted to intervene in that state-court case, and the case was stayed until July 20, 2020 (Id. ). See Arkansas Judiciary Website, Docket Search, http://caseinfo.arcourts.gov; Sierra Club v. Ark. Pollution Control & Ecology , Case No. 60CV-19-1980, Order Granting Consent Motion to Stay the Proceedings (June 10, 2019). As of the date of this Order, the state-court case remains stayed. Id.
In addition, on November 25, 2019, plaintiffs filed a new petition for review in the Eighth Circuit Court of Appeals challenging EPA's approval of the Revised RHR SIP, Case No. 19-3526 (Dkt. No. 61, at 3). The State represents that Entergy, the State, and the Coalition are all parties to that case (Id. ). The Eighth Circuit is holding that case in abeyance, pending this Court's decision (Id. ). See Sierra Club, et al. v. United States Environmental Protection Agency, et al. , Case No. 19-3526, Clerk Order (8th Cir. Dec. 18, 2019). On November 3, 2020, at the...
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