Monday, August 16, 2010

Sierra Club v. Otter Tail Power Company

Aug 12: In the U.S. Court of Appeals, Eighth Circuit, Case No. 09-2862. Sierra Club brought this Clean Air Act (CAA) citizen suit against Otter Tail Power Company, MDU Resources Group, and Northwestern Energy, who own and operate the Big Stone Generating Station, a coal fired power plant near the border between South Dakota and Minnesota. Sierra Club alleged that Otter Tail violated the CAA by failing to obtain permits for a series of modifications to the plant and by exceeding applicable emission limits. The district court granted Otter Tail's motion to dismiss, and Sierra Club timely appealed. The Appeals Court affirmed the district court opinion.
    By way of background, the Appeals Court explains that the Big Stone Generating Station is a 450 megawatt coal fired power plant located in Big Stone City, South Dakota. Otter Tail Power Company operates the plant. Big Stone has undergone various physical and operational modifications since it began operating in 1975. Sierra Club alleges that three of those modifications triggered PSD and NSPS obligations which Otter Tail has violated.
    The Appeals Court indicates that Sierra Club commenced this suit in June 2008 under the CAA's "citizen suit" provision, 42 U.S.C. § 7604(a), seeking assessment of civil penalties against Otter Tail as well as declaratory and injunctive relief. It alleged that Otter Tail had violated the CAA by failing to obtain PSD permits before commencing the three modifications described above. It also claimed that Otter Tail continued to violate the CAA by operating without permits and without abiding by the BACT emission limits which would have been imposed as part of the PSD permitting process. Finally, Sierra Club alleged that Big Stone was operating in violation of NSPS limits triggered by the 2001 ethanol plant project.
    Otter Tail moved to dismiss, arguing that Sierra Club's PSD claims were untimely and that the NSPS claim was an impermissible collateral attack on Otter Tail's operating permit. The district court granted the motion. It interpreted the CAA's PSD provisions as imposing upon operators only a one time obligation to obtain a permit before construction or modification of a facility, as opposed to imposing ongoing conditions on its operation. It reasoned that any violation of these provisions would have thus occurred when modifications were commenced. Since the last modification was begun in 2001, Sierra Club's PSD civil penalty claims were barred by the five year statute of limitations in 28 U.S.C. § 2462. Although § 2462 does not apply to equitable relief, the district court decided that Sierra Club's claims for equitable relief were foreclosed under the concurrent remedy doctrine because its civil penalty claims were time barred.
    The district court dismissed the NSPS claim for lack of subject matter jurisdiction. Because that claim essentially attacks the terms of Otter Tail's amended Title V permit rather than Otter Tail's compliance with the permit, the district court concluded that Sierra Club should have raised the NSPS issue in administrative proceedings during the permitting process. Since judicial review of issues that may be raised through that process is vested exclusively in the courts of appeals, the district court determined that it lacked jurisdiction over the NSPS claim.
    On one issue, the Appeals Court explained its rationale and said, "Sierra Club may be correct that the district court's interpretation of §§ 7661d and 7607 restricts the permit shield's applicability, but this does not persuade us that its interpretation is erroneous. While § 7661c(f) is a statutory defense to liability, §7607(b)(2) limits district court subject matter jurisdiction. To the extent the two provisions are in tension, the jurisdictional limit is paramount. See Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 17–18 (1951) ('The jurisdiction of the federal courts is carefully guarded against expansion by judicial interpretation . . . .'); Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994) ('It is to be presumed that a cause lies outside [the] limited jurisdiction' of the federal courts.). Sierra Club argues that our interpretation of the jurisdictional provisions should not curtail the scope of the permit shield, but the more fundamental rule of construction holds that we must not expand federal court jurisdiction in service to a broad reading of the permit shield.
    "Moreover, our interpretation of § 7607(b) does not render the permit shield entirely superfluous. Our holding is limited to the circumstances of this case. While we decline to delve into other contexts in which the permit shield may play a role, we note that the considerations underlying our decision would not necessarily be present . . . We conclude that because Sierra Club could have obtained judicial review of its NSPS claim through the process established by 42 U.S.C. § 7661d, district court review of that claim is foreclosed by § 7607(b)(2). Accordingly, the district court did not err in dismissing the claim."
    Access the complete opinion (click here).

Great Rivers Habitat Alliance v. FEMA

Aug 12: In the U.S. Court of Appeals, Eighth Circuit, Case No. 09-3183. Great Rivers Habitat Alliance (Great Rivers) and the Adolphus A. Busch Revocable Living Trust (Busch Trust) (collectively, appellants) appeal the dismissal of their case for lack of jurisdiction by the Magistrate Judge presiding with the consent of the parties. The district court found appellants failed to exhaust their administrative remedies before the Federal Emergency Management Agency (FEMA) pursuant to the National Flood Insurance Act of 1968 (NFIA), and further found the judicial review provisions of the Administrative Procedure Act (APA) did not apply. Appellants argue the case was dismissed in error because they had in fact exhausted their administrative remedies, and in any event should be allowed to proceed under the APA. The Appeals Court affirmed the district court decision.
    On the APA claim, the Appeals Court said, "Because the APA only grants judicial review of final agency action in cases 'for which there is no other adequate remedy in a court,' 5 U.S.C. § 704, the district court did not err in dismissing appellants' APA claim, because 42 U.S.C. § 4104(g) provides an adequate legal remedy."
    On the jurisdictional question the Appeals Court said it can be "reduced to whether appellants challenged FEMA's decision on the basis of the decisions' scientific or technical accuracy in accordance with § 4104(b). In order to appeal a determination on the basis of scientific or technical accuracy, FEMA's regulations require supporting documentation. . . Appellants did not point to any mathematical or measurement error, changed physical conditions, or lack of sufficient quality data to support the allegations . . . We agree with the district court that appellants' challenge was not based upon the scientific or technical accuracy of the LOMR [Letter of Map Revision], and thus did not constitute an appeal within the meaning of 44 C.F.R. § 67.6."
    The Appeals Court said finally, ". . . the regulations require appellants to certify new information so FEMA can conduct another analysis. This is precisely what appellants failed to do in this case. Instead, appellants attempt to force FEMA to reanalyze the existing data, hoping for a different result, without submitting any new certified technical data showing the first analysis contained mathematical or measurement errors, or physical conditions have changed. Because appellants did not submit new scientific or technical information, and what they did submit was not certified by an engineer or surveyor, appellants are relying on nothing but the data in FEMA's files. The district court correctly concluded it lacked jurisdiction because appellants failed to exhaust their administrative remedies by filing a proper appeal with FEMA."
    Access the complete opinion (click here).