Thursday, June 2, 2011

Sierra Club vs. Two Elk Generation Partners

May 31: In the U.S. Court of Appeals, Tenth Circuit, Case No. 10-8032. Appealed from the U.S. District Court for the District of Wyoming. Plaintiff-Appellant Sierra Club filed the action on January 29, 2009 under the citizen suit provision of the Clean Air Act (CAA), alleging that Defendant-Appellee Two Elk Generation Partners (Two Elk) is attempting to build a coal-fired power plant with an invalid Prevention of Significant Deterioration (PSD) permit in violation of the CAA. The district court granted Two Elk's motion to dismiss, holding that Sierra Club's suit was barred by the doctrine of "issue preclusion." In a split decision the Appeals Court affirmed the District Court opinion.
    Based on legal timelines and procedural matters, the majority ruled that, "Sierra Club chose not to intervene in the 2005 and 2007 proceedings before the Council. It never appealed the Council's 2005 Order, and it abandoned its appeal of the Council's 2007 Order. It now attempts to second guess the position taken by DEQ and the final decisions made by the Council and the Wyoming district court. Wyoming's policy of finality of judgments favors against allowing Sierra Club to relitigate issues that have already been decided."
    The dissenting justice indicated, "Because my colleagues expand the well-defined principles of parens patriae to include preclusion based on state intra-agency proceedings and because they misapply the doctrine of collateral estoppel, I respectfully dissent. The majority concludes that the common law applies to citizen suits under the Clean Air Act and thereby seeks to invoke parens partiae standing. But my colleagues ignore the Clean Air Act's impact on common-law principles. Even assuming
traditional preclusion doctrines were to apply, the 2005 and 2009 Orders lack preclusive effect."
    Access the complete opinion and dissent (click here). [*Air, *Energy/Coal]

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