CleanCOALition v. TXU Power

Jul 21: In the U.S. Court of Appeals, Fifth Circuit, Case No. 07-50685. According to the Fifth Circuit, the case is one of first impression and involves the scope of citizen-suit jurisdiction under the Clean Air Act (CAA). Plaintiffs-Appellants filed suit to enjoin Defendants-Appellees from constructing a pulverized coalfired power plant in their community, alleging various violations of the CAA preconstruction permit process. The district court dismissed the 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." The Appeals Court affirmed the judgment of the district court.

The Appeals Court concluded, "The district court held that § 7604(a)(3) does not authorize preconstruction citizen suits against facilities that have either obtained a permit or are in the process of doing so. Instead, the district court interpreted that section as authorizing citizen suits when an entity proposes to construct or constructs a facility without a permit whatsoever. We agree with the district court’s interpretation. Appellants interpret the phrase 'without a permit' to mean 'without a permit that complies with the CAA.' However, we decline to rewrite the plain language of the statute. Here, not only has TXU applied for a permit, it has since successfully obtained one, though still subject to state judicial review. Thus, it can hardly be said -- as Appellants must in order for §7604(a)(3) to apply -- that TXU is proposing to construct or constructing a facility 'without a permit.' . . . In short, we agree with the district court that § 7604(a)(3) does not authorize preconstruction citizen suits against facilities that have either obtained a permit or are in the process of doing so."

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