Citizen Suits Remain a Potent Weapon

Although citizen groups have suffered some defeats in Clean Air Act cases in the NSR/PSD context recently, a decision last week in a different kind of CAA case is a reminder of just how powerful a weapon citizen suits can be, and just how difficult they can be to defend, even when the operator appears to have a good working relationship with the regulator.  In NRDC v. Illinois Power Resources, Judge Joe Billy McDade, awarded summary judgment to NRDC (and other plaintiffs) on the vast majority of the plaintiffs’ claims concerning the Illinois Power Resources Generating E.D. Edwards Power Plant.ED Edwards Although the decision relies in significant part on Illinois law, several issues are of more general interest.

  • The decision puts an exclamation point on the uphill battle defendants face in challenging citizen plaintiffs’ standing.  Once the Court noted that an “’identifiable trifle’ will be sufficient to establish injury-in-fact,” it was clear where the standing issue was headed.
  • The Court also made clear that affirmative defenses are likely to be narrowly construed.  Here, there were numerous occasions when the facility exceeded its opacity limit, which also presumptively results in particulate matter emissions violations.  The facility thought it had a defense based on the ability to show that it was in fact in compliance with its PM limits (which would also rebut the opacity violation allegations).  However, the Court required strict compliance with the terms of the defense in the IEPA regulations – and found that the facility did not strictly comply.
  • The Court rejected the facility’s “malfunction and breakdown” defense, for largely the same reason – failure to strictly comply with the requirements in its permit and the IEPA regulations.  In particular, the facility did not comply with the permit requirement to notify IEPA by telephone asap.  The facility argued that it had a “side-agreement” with IEPA that required it to report only opacity exceedances lasting more than 30 minutes.  The Court made short work of this argument:

Defendants’ attempt to rewrite the text of the Permit through informal agreement must be rejected.

If there’s one lesson from this case – other than not to spend money on attorneys’ fees to fight citizen standing – it’s this:  DON’T RELY ON SIDE-AGREEMENTS WITH REGULATORS.  It’s difficult enough to block citizen suits based on formal agreements with regulators.  Side-agreements are never going to do the trick.  I’ll go further.  It’s nearly impossible to estop the government, so you can’t even count on the side-agreement to prevent government enforcement.

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