Thursday, August 13, 2009

Mirant Potomac River, LLC v. EPA

Aug 12: In the U.S. Court of Appeals, Fourth Circuit, Case No. 08-1277. The Appeals Court explained that Mirant Potomac River, LLC (Mirant) appealed the U.S. EPA approval of Virginia’s Clean Air Interstate Rule State Implementation Plan (CAIR SIP). The Court said Mirant’s alleged injury, however, "flows from Virginia’s Nonattainment Provisions, which are separate emissions standards adopted by Virginia’s Air Pollution Control Board (Virginia Board) under the authority of the Virginia legislature. Because Mirant’s injury cannot fairly be traced to EPA’s approval of Virginia’s CAIR SIP, we dismiss for lack of standing."

The Appeals Court also noted in a footnote, "Since we find no subject matter jurisdiction, we need not evaluate a recent decision by Virginia’s Court of Appeals that invalidated a portion of the Nonattainment Provisions. . . Mirant Potomac River, LLC v. Commonwealth of Virginia, State Air Pollution Control Board, 2009 WL 1748524 (Va. Ct. App. June 23, 2009) (unpublished)."

In summary the Appeals Court ruled, ". . .there is no connection -- much less one that is 'fairly traceable' -- between Mirant’s claimed injury and EPA’s approval of Virginia’s CAIR SIP because Virginia’s Nonattainment Provisions and its CAIR SIP are separate regulatory schemes. Virginia’s Nonattainment Provisions are state regulations. They are not part of, and do not directly interfere with, the CAIR SIP approved by EPA. Consequently, Mirant has failed to demonstrate a causal link between its alleged injury and EPA’s approval of Virginia’s CAIR SIP. Mirant has failed to carry its burden of establishing standing."

Access the complete opinion (
click here).