The Nickel Report

In my October 16, 2018, post, I observed that a panel of the Fifth Circuit put another nail, though not the final nail, in the coffin of NSR enforcement for projects completed a long time (some of them, decades) before EPA or other plaintiffs filed a complaint alleging NSR violations. In United States v. Luminant, No. 17-10235 (5th Cir. Oct. 1, 2018), the panel unanimously ruled that the statute of limitations bars civil penalties for NSR violations that allegedly occurred more than five years before the filing of the complaint. But over a strong dissent by Judge Elrod, a 2-1 majority ruled that while injunctive relief is also barred in those circumstances for non-government plaintiffs (Sierra Club, in this case), injunctive relief is still “available” when the government is seeking to enforce the Clean Air Act.

Nearly two years into the current administration, many questions remain regarding the Environmental Protection Agency (EPA) and US Department of Justice’s (DOJ) approach to environmental enforcement. EPA and DOJ have both issued various policies that we have covered in past blog posts that provide some level of insight on priorities and procedures, but a better assessment can only be made by looking at cases initiated, referred, resolved or concluded after a trial.

In my April 2, 2018, post, I asked whether the US Court of Appeals for the Fifth Circuit would put another nail in the coffin of NSR enforcement for projects completed a long time (some of them, decades) before EPA or other plaintiffs filed a complaint alleging NSR violations. A three-judge panel of the Court of Appeals answered in United States v. Luminant, No. 17-10235 (5th Cir. Oct. 1, 2018), by unanimously ruling that the statute of limitations bars civil penalties for NSR violations that allegedly occurred more than five years before the filing of the complaint. But in a 2-1 decision, the majority ruled that, while injunctive relief is also barred in those circumstances for non-government plaintiffs (Sierra Club, in this case), injunctive relief is still “available” when the government is seeking to enforce the Clean Air Act. In her dissent in part, Judge Elrod said she would have affirmed the district court’s dismissal of the case in all respects, characterizing any “injunctive” relief sought by the government as “really just time-barred penalties in disguise.”

The New Source Review (NSR) Program of the Clean Air Act (CAA) requires large new plants (in the parlance of the Act “major” “stationary sources”) to go through an extensive, time consuming and expensive review and permitting process prior to construction. Such sources are required through these permits, among other requirements, to install the best available control technologies (BACT) to reduce levels of specific regulated pollutants. The NSR program also applies to existing facilities if they are modified in substantial ways and if, as a result, emissions increase by significant amounts (these are known as “major modifications”).