On Monday, District Judge Rodney Sippel ordered sweeping injunctive relief against Ameren Missouri, intended to remedy violations of PSD requirements he had previously identified resulting from upgrades to the Ameren Missouri Rush Island generating plant.
Notwithstanding the lengthy opinion, most of the Court’s findings are fairly plain vanilla. Basically, Judge Sippel ordered Ameren Missouri to submit a PSD permit application and he ruled that BACT for control of SO2 emissions at Rush Island required installation of wet flue gas desulfurization equipment.
The notable part of the opinion was Judge Sippel’s handling of what to do about the 162,000 tons of excess emissions he found resulted from Ameren Missouri’s failure to get the required PSD permit. First, he concluded that the emissions increased the risk of mortality among those impacted by the excess emissions. He also concluded that the only way really to remediate those excess emissions was to require emissions reductions at another Ameren Missouri generating plant, the Labadie Energy Center. The Judge thus ordered Ameren Missouri to install dry sorbent injection equipment at Labadie and to run it until the amount of SO2 emitted at Labadie had been reduced by an amount equal to the excess emissions at Rush Island (which are expected to reach almost 275,000 tons by the time the wet scrubbers are operational at Rush Island).
This requirement brought to mind arguments in the GHG context about EPA’s authority to regulate “outside the fenceline.” After all, in order to address emissions at one facility, Judge Sippel is requiring emissions reductions at a different facility. However, Judge Sippel’s careful opinion justifies the requirement to reduce emissions at Labadie. The opinion demonstrates that:
- The damages caused by the excess emissions at Rush Island are irreparable,
- Reductions at Labadie will benefit the same population impacted by the Rush Island emissions,
- The balance of hardships favors the plaintiffs,
- Injunctive relief at Labadie does not constitute a penalty, and
- Injunctive relief is narrowly tailored to address the harm resulting from the violations at Rush Island.
I think that the opinion – all 157 pages of it – is careful and thorough and likely to survive any appeal. Equitable relief is a powerful tool.
Do you really think so? I’m troubled. What’s next, my client makes up for the neighbor’s excess emissions!
I wouldn’t worry too much about that outcome. Although a more flexible outcome to the Ameren Missouri case would be to allow Ameren Missouri to pay your client to reduce its emissions, if doing so would be more cost-effective than if Ameren Missouri were to do it by itself!