Earlier this month, the 5th Circuit Court of Appeals granted something of a reprieve to EPA’s New Source Review enforcement initiative. The Court first confirmed what everyone other than EPA and DOJ already knew – that failure to get a pre-construction permit is a one-time offense, so that penalty claims for alleged violations more than five years prior to filing are barred by the statute of limitations.
However, the Court then surprised most observers by holding that expiration of penalty claims did not doom the government’s claim for injunctive relief. Specifically, the Court ruled that the “concurrent remedies doctrine,” which bars equitable remedies when no legal remedy is available, cannot be applied to a sovereign.
I’m not going to provide an exegesis of the doctrine, which carries more than a whiff of Jarndyce v. Jarndyce. I’ll settle for three points. First, it may not be a legal doctrine, but I’d apply the doctrine of common sense, rather than the doctrine of concurrent remedies. Given that all courts agree that NSR does not impose ongoing operational requirements, it doesn’t even make sense to me to think of ongoing forward-looking injunctive relief with respect to a one-time violation that may have occurred twenty years or more ago.
I’ll add to that a related point. As other NSR cases have noted, many of these facilities have changed hands since the projects at issue were constructed. In those cases, the former owners aren’t subject to injunctive relief, because they don’t own the facilities and thus have no ability to install BACT. The new owners aren’t subject to injunctive relief, because they did not violate the Clean Air Act. In these circumstances, are we really going to make the availability of injunctive relief subject to the random circumstance of which facilities have been sold and which have not? That just seems nuts.
Finally, I’ll emphasize that EPA and DOJ shouldn’t get too excited over this decision. The Court was very clear that it was not deciding whether injunctive relief was appropriate, only that it wasn’t barred by the statute of limitations. The Court’s language was unlike any I’ve ever seen before and is worth a read:
On remand, the district court must further consider whether any equitable relief is appropriate and proper under the legal and factual circumstances of this case in which the legal relief has been time barred. We recognize that we are not giving the district court much guidance in this task. … Perhaps the answer to this knotty question of injunctive relief will reveal itself after a full hearing and the presentations of the parties. And we hope that we are not being too cowardly when we sincerely wish the district court good luck.
And I’m sure that the District Court will appreciate the 5th Circuit’s good wishes.
Am I missing something? If a facility fails to comply with the NSR requirements, allegedly, and thus made no analysis whether its modifications could trigger the need for new pollution reduction equipment and/or put it into a different category of emitters, why is injunctive relief moot? If there’s potential for harm (increased emissions), the harm must be remedied. Otherwise why would any source ever comply with NSR? And those sources that did would be at a competitve disadvantage compared to those that did not. As to successor owners, depending on whether or not they assumed the predecessor’s liabliities, they could be liable for penalties; as to injunctive relief, if they are arguably emitting more emissions than allowed, injunctive relief is appropriate regardless of the change in ownership.
I do think you’re missing something, which is the bedrock principle, now pretty much accepted by all courts, that NSR requirements are one-time, preconstruction requirements. Sources can be expected to comply with NSR because they cannot assume that the government will blow the statute of limitations. As to the current owners, they are not emitted more than allowed, because of that pesky one-time violation issue.