WildEarth Guardians v. Pub. Serv. Co. of Colo., No. 11–1400.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: TYMKOVICH
• Citation: 690 F.3d 1174
• Parties: WILDEARTH GUARDIANS, a New Mexico non-profit corporation, Plaintiff–Appellant, v. PUBLIC SERVICE COMPANY OF COLORADO, doing business as XCEL Energy, Defendant–Appellee.
• Docket Number: No. 11–1400.
• Decision Date: 10 August 2012

690 F.3d 1174

WILDEARTH GUARDIANS, a New Mexico non-profit corporation, Plaintiff–Appellant,
v.
PUBLIC SERVICE COMPANY OF COLORADO, doing business as XCEL Energy, Defendant–Appellee.

No. 11–1400.

United States Court of Appeals,
Tenth Circuit.

Aug. 10, 2012.

[690 F.3d 1177]

Maclain Joyce, Student Attorney (Professor Kevin Lynch, Supervisor, and Professor Michael Ray Harris with him on the briefs, and Casey Giltner, Student Attorney, with him on the opening brief), Environmental Law Clinic, University of Denver Sturm College of Law, Denver, CO, for Appellant.

William M. Bumpers, Baker Botts L.L.P., Washington, District of Columbia (A. Kent Mayo and Michael Heister, Baker Botts, L.L.P., Washington, District of Columbia, and Colin C. Deihl, Ann E. Prouty, and Linda L. Rockwood, Faegre Baker Daniels LLP, Denver, CO, with him on the brief), for Appellee.

[690 F.3d 1178]

Before O'BRIEN, TYMKOVICH, and MATHESON, Circuit Judges.

TYMKOVICH, Circuit Judge.

The question in this case is whether allegations that Public Service Company of Colorado (PSCo) violated the Clean Air Act have become moot. WildEarth Guardians claims that PSCo's construction of a new coal-fired power plant in Pueblo, Colorado violated the Act because PSCo failed to obtain a valid construction permit. WildEarth seeks civil penalties to remedy the violation.

Although the project initially complied with all applicable federal and state laws when construction commenced in 2005, the regulatory landscape changed in 2008. A decision of the D.C. Circuit required regulators to impose additional Clean Air Act requirements upon new power plant construction. After the decision, PSCo worked with the relevant agencies to come into compliance with the modified regulatory regime while construction of the plant continued.

WildEarth sued PSCo pursuant to the Act's citizen-suit provisions, seeking civil penalties and an injunction to halt construction until PSCo complied with the Act. While this litigation was pending, PSCo finished constructing the plant and came into compliance with the new regulatory regime. The district court dismissed the suit, reasoning that to find a Clean Air violation under the circumstances would be to give unwarranted retroactive effect to the decision of the D.C. Circuit.

PSCo argues that we lack jurisdiction to hear this appeal. It contends that since it is now in compliance with the Act, a court ruling could not redress any injuries WildEarth has suffered as a result of PSCo's alleged violation. PSCo also argues WildEarth in effect has received the injunctive relief it requested because PSCo is now in compliance.

Although we find redressability to be an inappropriate basis for dismissal here, WildEarth's claims nonetheless should be dismissed under the related jurisdictional doctrine of constitutional mootness. In most Clean Air citizen suits, mootness is difficult to establish because the plaintiff's interest in deterring the defendant from future violations is sufficient to sustain a constitutional case or controversy between the parties. Under the unusual circumstances of this case, however, we find PSCo's alleged Clean Air violations could not reasonably be expected to recur, and thus no deterrent effect could be achieved.

Accordingly, we find this appeal moot and DISMISS.

I. Statutory and Regulatory Background

A brief overview of the applicable statutory and regulatory framework will help to explain WildEarth's claims. It will also show how the applicable regulations in this case shifted over the years during which PSCo conceived and constructed the plant.

The regulation of power plant mercury emissions under the Clean Air Act has a long and complex history. In 1970, Congress added section 112 to the Act, which required the Environmental Protection Agency (EPA) to develop a list of Hazardous Air Pollutants that should be regulated because they could cause illness, and to promulgate emissions standards for them. Pub.L. No. 91–604 § 112(a)(1). In 1990, frustrated by the EPA's slow progress, Congress amended section 112 to require the EPA to regulate more than one hundred specific pollutants, including mercury. Congress specified that pollutant standards must “require the maximum degree of reduction in emissions ... that the [EPA] Administrator, taking into consideration the cost of achieving such emission reduction ... determines is achievable.”

[690 F.3d 1179]

§ 112(d)(2). New sources of pollutants falling within a list of regulated source categories must utilize “the maximum achievable control technology emission limitation” (MACT), and for pollutants for which standards have not yet been established, the permitting authority determines MACT compliance “on a case-by-case basis.” § 112(g)(2)(A). ¹ Congress also restricted the EPA's ability to remove source categories from the list of regulated sources, requiring it first to determine that “emissions from no source in the category ... exceed a level which is adequate to protect public health with an ample margin of safety and no adverse environmental effect will result from emissions from any source.” § 112(c)(9).

The 1990 amendment contained special rules for new electric utility steam generating units, such as the coal-fired power plant at issue here. Congress did not require the EPA to immediately regulate coal plants; instead, it required the EPA to “perform a study of the hazards to public health reasonably anticipated to occur as a result of emissions by [coal plants] of pollutants.” § 112(n)(1)(A). The Administrator would be required to regulate coal plant emissions only if he found “such regulation is appropriate and necessary after considering the results of the study.” Id.

The required emissions study, completed in 1998, found “a plausible link between anthropogenic releases of mercury from industrial and combustion sources in the United States and methylmercury in fish” and that “mercury emissions from [coal plants] may add to the existing environmental burden.” Kathryn Mahaffey et al., U.S. EPA, EPA–452/R–97–009, Mercury Study Report to Cong., Vol. VII, 45 (1997), available at http:// www. epa. gov/ ttn/ oarpg/ t 3/ reports/ volume 7. pdf. ² In 2000, the Administrator, in light of the 1998 study, found it was “appropriate and necessary” to regulate mercury emissions from coal plants, and formally added coal plants to the list of source categories. Regulatory Finding on the Emissions of Hazardous Air Pollutants From Electric Utility Steam Generating Units, 65 Fed.Reg. 79,825, 79,827 (Dec. 20, 2000).

The EPA considered two main alternatives for regulating coal plant mercury emissions. The first alternative was through issuance of MACT standards under section 112. The second was the creation of a mercury cap-and-trade system. This second option would involve removing coal plants from the list of source categories under section 112 and regulating them under a different section of the Act. In 2005, in a decision referred to as the “Delisting Rule,” the EPA chose the cap-and-trade option.

The Delisting Rule was controversial and was challenged by the state of New Jersey in federal court. In 2008, a panel of the D.C. Circuit struck down the Delisting Rule. See New Jersey v. EPA, 517 F.3d 574 (D.C.Cir.2008). The court found that the EPA, in delisting coal plants, had not followed the delisting procedures required by section 112(c)(9) of the Act. This decision restored the regulation of coal plant mercury emissions under section 112's “case-by-case determination” process.

Finally, in 2012, the EPA formally issued MACT standards for coal plant mercury emissions. See

[690 F.3d 1180]

National Emission Standards for Hazardous Air Pollutants From Coal-and Oil–Fired Electric Utility Steam Generating Units and Standards of Performance for Fossil–Fuel–Fired Electric Utility, Industrial–Commercial–Institutional, and Small Industrial–Commercial–Institutional Steam Generating Units, 77 Fed.Reg. 9304 (Feb. 16, 2012). The new standards, known as the Mercury and Air Toxics Standards, specified the control technologies required for new coal plants, thereby eliminating the need for case-by-case MACT determinations.

Although federal and state authorities have primary enforcement responsibility, the Clean Air Act also includes a private enforcement mechanism. Section 304 authorizes “any person” to “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.” CAA § 304(a). Courts may award both injunctive relief and civil penalties. See id. The penalties, however, are payable to the United States Treasury rather than plaintiffs, who can only recover their litigation costs. See §§ 304(g)(1), 304(d). The court, in its discretion, may designate a portion of the penalties to “be used in beneficial mitigation projects which are consistent with this chapter and enhance the public health or the environment.” § 304(g)(2).

II. Factual and Procedural History

In the midst of this evolving regulatory environment, PSCo sought to build a new coal plant, known as the Comanche 3 Unit, at the Comanche Generating Station in Pueblo, Colorado. From the project's conception, PSCo worked with several major environmental and community groups to implement a plan that would enable the Comanche 3 Unit to meet or exceed Clean Air requirements. In December 2004, PSCo reached a formal settlement with these groups, in which PSCo agreed to install “state-of-the-art pollution controls,” Supp.App. at 30, including mercury controls equal to or exceeding the MACT standards proposed by the EPA prior to the Delisting Rule.³ PSCo also agreed to install new mercury controls and other pollution controls on two older coal plants at the Comanche Generating Station.

PSCo's revised permit application, submitted in January 2005, incorporated the settlement and requested a case-by-case MACT determination. But, in March 2005, the EPA...