U.S. v. American Elec. Power Service Corp.

• Decision Date: 16 July 2002
• Docket Number: No. C2-99-1250.,No. C2-99-1182.,C2-99-1182.,C2-99-1250.
• Citation: 218 F.Supp.2d 931
• Parties: UNITED STATES of America, Plaintiff, and State of New York, et al., Plaintiff-Intervenors, v. AMERICAN ELECTRIC POWER SERVICE CORP., et al., Defendants. Ohio Citizen Action, et al., Plaintiffs, v. American Electric Power Service Corp., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

218 F.Supp.2d 931

UNITED STATES of America, Plaintiff, and State of New York, et al., Plaintiff-Intervenors, v. AMERICAN ELECTRIC POWER SERVICE CORP., et al., Defendants.

Ohio Citizen Action, et al., Plaintiffs, v. American Electric Power Service Corp., et al., Defendants.

No. C2-99-1182.

No. C2-99-1250.

United States District Court, S.D. Ohio, Eastern Division.

July 16, 2002.

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Jon A. Mueller, Leslie B. Bellas, Thomas A. Mariani, Jr. Steven D. Ellis, U.S. Department of Justice, Environmental Enforcement Section, Land & Natural Resources Division, Washington, DC, for Plaintiffs in Case No. C2-99-1182.

Gary D. Greenwald, Shayne & Greenwald, Columbus, OH, J. Jared Snyder, D. Scott Bassinson, New York Attorney General's Office, Albany, NY, Howard Geduldig, Kevin P. Auerbacher, Dante DiParro, John R. Renella, Mary E. Costigan, New Jersey Attorney General, Trenton, NJ, Richard Blumenthal, Kimberly P. Massicotte, Judith A. Merrill, Connecticut Attorney General's Office, Hartford, CT, Dianne H. Sanford, Erick Titrud, Vermont Attorney General's Office, Montpelier, VT, Maureen D. Smith, New Hampshire Attorney General, Concord, NH, Frederick D. Augenstern, Massachusetts Attorney General, Environmental Protection Division, Boston, MA, Van Lear Dorsey, Maryland Attorney General, Department of Environment, Baltimore, MD, Tricia K. Jedele, Mark Sciarrotta, Rhode Island Attorney General, Providence, RI, for Intervening Plaintiffs in Case No. C2-99-1182.

Donald M. Miller, American Electric Popwer Service Corp., Columbus, OH, Alvin J. McKenna, Lisa L. Eschleman, R. Leland Evans, James B. Hadden, Porter, Wright, Morris & Arthur, Columbus, OH, for Defendants in Case Nos. C2-99-1182 and C2-99-1250.

Stephen P. Samuels, Samuels & Norhtrop, Columbus, OH, Nancy S. Marks, Mitchell S. Bernard, Natural Resources Defense Council, Inc., New York City, David Hawkins, Natural Defense Council, Inc., Washington, DC, David Wooley, Clean Air Task Force, Young Sommer, LLC, Albany, NY, Albert Ettinger, Donald Rosenblum, Susan Hedman, Environmental Law & Policy Center of Midwest, Chicago, IL, David T. Buente, Jr., Kathryn Thomson, Timothy Webster, Sidley & Austin, Washington, DC, for Plaintiffs in Case C2-99-1250.

OPINION AND ORDER

SARGUS, District Judge.

This matter is before the Court for consideration of the Plaintiffs' Motions to Strike certain Affirmative Defenses raised by Defendants (Doc. # 117 in case 99-1182 and Doc. # 102 in case 99-1250). For the reasons that follow, the Plaintiffs' motions are granted in part and denied in part.

I.

Plaintiffs United States of America, the Intervening Northeastern States and the various Citizen Groups bring this action seeking redress for Defendants' alleged violations of § 304(a)(3) of the Clean Air Act ["CAA"], 42 U.S.C. § 7604(a)(3), in connection with Defendants' operation of nine coal-fired power plants in the States of Ohio, Virginia and West Virginia. In response to Plaintiffs' Amended Complaints, Defendants raise one hundred twenty-three (123) affirmative defenses. The Plaintiffs move to strike seventy-two (72) of the defenses. Plaintiffs categorize the 72 defenses in the following manner: statute of limitations and equitable defenses; constitutional defenses; rulemaking defenses; CAA-specific defenses; and defenses unique to the Plaintiff Citizens and States. The Court will address the merits of Plaintiffs' motions using these categories.

II.

Plaintiffs' motions are brought pursuant to Fed.R.Civ.P. 12(f), which states:

(f) Motion to Strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

The Sixth Circuit has held that "because of the practical difficulty of deciding cases without a factual record it is well established that the action of striking a pleading should be sparingly used by the courts. It is a drastic remedy to be resorted to only when required for the purposes of justice." Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir. 1953) (internal citations omitted). Thus, such a motion should only be granted "when the pleading to be stricken has no possible relation to the controversy." Id.

With respect to affirmative defenses, a motion is strike is proper if the defense is insufficient; that is, if "as a matter of law, the defense cannot succeed under any circumstances." Ameriwood Industries Int'l Corp. v. Arthur Andersen & Co., 961 F.Supp. 1078, 1083 (W.D.Mich.1997). Further, the motion is proper if it aids in eliminating spurious issues before trial, thereby streamlining the litigation. Id. With this standard in mind, the Court considers whether certain of Defendants' affirmative defenses should be stricken.

III.

A. Statute of Limitations and Equitable Defenses

1. Statute of Limitations

Plaintiffs move to strike the statute of limitations defense raised by the Defendants under 28 U.S.C. § 2462, which provides:

Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon.

28 U.S.C. § 2462.

Plaintiffs argue that the defense should be stricken because this Court has already ruled that the limitations period does not apply with respect to penalties sought for violations that occurred within five years preceding the filing of these actions, regardless of whether other violations are now time-barred. Defendants contend that Plaintiffs mischaracterize the Court's earlier rulings. Defendants further argue that the Court should not strike the affirmative defense raised under 28 U.S.C. § 2462, but should allow the defense to remain so as to preserve the issue for appeal.

With respect to the statute of limitations defense, the Court stated in pertinent part:

[T]he government apparently concedes the statute's applicability to the claims in this case for civil penalties ... [as it] states that it will not seek civil penalties for days of violation prior to November 3, 1994..... The Court concludes ... that the states' claims are similarly limited by § 2462.... [T]he same cannot be said for the EPA's and intervenor Plaintiffs' claims for injunctive relief, at least insofar as the limitations contained in § 2462 are concerned. That section does not mention injunctions or equitable relief of any kind.... [Further,] if the EPA and/or the Intervenors have claims for injunctive relief under provisions of the CAA, based on Defendants' operation of generating units allegedly modified in violation of the act, § 2462 is not a bar to pursuing such claims, even though the modifications may have been completed more than five years before suit was filed.

United States of America v. American Electric Power Service Corp., 136 F.Supp.2d 808, 811 (S.D.Ohio 2001). Further, this Court held that, whether Plaintiffs' demand for injunctive relief constitutes a penalty thereby making it subject to the limitations period, must await resolution on the merits. United States of America v. American Electric Power Service Corp., 137 F.Supp.2d 1060, 1068 (S.D.Ohio 2001).

The Court concludes that the defense based upon § 2462 may remain in this action to the extent set forth above. Indeed, the Defendant recognizes the limited applicability of the defense. (Memorandum contra at 49-51). Plaintiffs' motion to strike the defense in its entirety is denied.

2. Laches

Plaintiffs move to strike the affirmative defense of laches on the basis that it is insufficient as a matter of law. Plaintiffs point out that laches does not apply to the United States acting in its sovereign capacity to enforce a public right or to assert a public interest. Similarly, the Plaintiffs argue that the defense does not apply to the States or the Citizens because they too are acting to enforce public rights. The Defendants concede as much, but point out that this Court earlier concluded that "the doctrine of laches may prevent injunctive relief ..." United States v. AEP, 137 F.Supp.2d at 1067; and the Court held that "[t]he nature and/or extent of appropriate injunctive relief might well change because of the lapse of time." United States v. AEP, 136 F.Supp.2d at 814.

The Court concludes that the defense of laches may remain in this case regarding injunctive relief; the defense is not, however, available as to claims for civil penalties. Thus, the Plaintiffs' motion to strike the defense in its entirety is denied.

3. Equitable Estoppel/Waiver

Plaintiffs move to strike the defense of equitable estoppel on the basis that it does not apply against the United States. The Defendants contend that there is no absolute bar to application of the defense against the Government; further, Defendant contends that the motion to strike is premature until discovery is complete.

In their answer, Defendants assert that Plaintiffs' claims are barred in whole or in part by the doctrine of estoppel. (Sixth Affirmative Defense). Plaintiffs correctly point out that, "equitable estoppel will not lie against the Government as it lies against private litigants." Office of Personnel Management v. Richmond, 496 U.S. 414, 419, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990). Nevertheless, the Supreme Court has stopped short of adopting a flat rule absolutely prohibiting estoppel to be raised against the United States. Id. Application of the doctrine is limited and the Sixth...