As we noted in 2013, two different Courts of Appeal had ruled that injunctive relief is not available in PSD/NSR enforcement cases against former owners. Both United States v. Midwest Generation and United States v. EME Homer Generation held that, because the former owner no longer controls the site, courts cannot impose injunctive relief against them. As the Court stated in EME Homer Generating:
with time travel yet to be discovered, it is impossible to “restrain” a violation that occurred twenty years ago. Likewise, courts cannot “require compliance” from defendants who are not currently violating the Clean Air Act and who cannot violate the Act in the future because they no longer own or operate the source.
However, in an opinion issued last month in United States v. Westvaco, Judge Marvin Garbis has found a way around this conundrum. Since the point of the injunction is not per se to have controls on the facility, but to mitigate the harm caused by the excess emissions allegedly resulting from the failure to comply with PSD BACT requirements, Judge Garbis concluded that he may order the defendant former facility owner to buy and retire emission credits to counterbalance the harm caused by the facility’s historical excess emissions.
The Court did not impose an injunction, instead scheduling further proceedings to determine whether such an injunction is in fact feasible and, if so, what its scope should be. However, it certainly appears that the Court will order such an injunction as long as the retirement of emission credits “bear[s] a reasonable relationship to the decree and kind of wrong it is intended to remedy.”
It’s not obvious to me that this works and I expect Westvaco to appeal any final judgment (assuming it does not seek and obtain the right to interlocutory appeal), but it’s certainly a creative approach that the government is likely to enthusiastically support, where the alternative is no relief at all.