Can New Source Review Require Mitigation of Past Harm?

Can a party found liable of violating the Clean Air Act’s New Source Review provisions be required to reduce future pollution more to mitigate emissions caused by past violations?  According to a recent U.S. District Court decision, maybe.

In U.S. v. Cinergy Corp., S.D. Ind., No. 99-1693, decided October 14, 2008, the first court to rule on whether retroactive, as opposed to prospective relief, is available under Section 113 of the Clean Air Act found that the court does have the authority to grant such relief.  Although the court stopped short of ordering this relief (procedurally, this opinion was a denial of the defendants’ summary judgment motion), the court held in sweeping language that nothing in the Clean Air Act limits the full range of equitable relief that courts can order.

This recent ruling relies heavily on a 1946 U.S. Supreme Court decision, Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946), in which the Supreme Court held that when a court’s equitable jurisdiction is invoked by a statute, "all the inherent equitable powers of the District Court are available for the proper and complete exercise of that jurisdiction," unless the law by "clear and valid legislative command" or "necessary and inescapable inference" has restricted the court’s equitable powers.

In Cinergy Corp., the district court said its equitable powers were invoked by the phrasing of Section 113 of the Clean Air Act which gives a court, "jurisdiction to restrain [a] violation [of the Clean Air Act], to require compliance, assess [a] civil penalty, to collect any fees owed the United States… and to award any other appropriate relief."   Applying this rule, the court determined that it would have the authority to require the three defendants to take appropriate actions that remedy, mitigate and offset harms to the public and the environment caused by their proven violations of the Clean Air Act.

In this particular enforcement suit, three companies — Cinergy Corp. (now part of Duke Energy Corp.), PSI Energy Corp., and the Cincinnati Gas & Electric Co. — were found liable in May of long-term violations of the New Source Review requirements in their operation of a power plant in West Terre Haute, Indiana. The US requested in their filings that the court impose specific measures to reduce pollution beyond what is required for prospective compliance, in order to make up for the nearly two decades of illegal pollution caused by the plant. 

A trial on remedies is expected to begin in February, 2009.

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