Sierra Club, Inc. v. Sandy Creek Energy Associates, L.P.
627 F.3d 134
| 5th Cir. | 2010Background
- Sandy Creek Energy Associates, L.P. is constructing a coal-fired power plant in Riesel, Texas.
- The plant would emit more than ten tons per year of hydrogen chloride, placing it under § 112(g)'s MACT construction prohibition.
- EPA's Delisting Rule in 2005-2005 removed EGUs from § 112 regulation, delaying MACT determinations.
- In 2006, Texas TCEQ concluded no case-by-case MACT determination was needed for Sandy Creek due to the Delisting Rule.
- The D.C. Circuit later vacated the Delisting Rule and New Jersey v. EPA confirmed EGUs remain subject to § 112; the mandate issued March 14, 2008.
- Sierra Club and Public Citizen filed suit in August 2008 challenging Sandy Creek’s ongoing construction without a final MACT determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TCEQ made a proper MACT determination for Sandy Creek. | Sierra Club argues no MACT determination was made. | Sandy Creek argues TCEQ determined MACT was not required. | TCEQ did not make a proper MACT determination. |
| Whether ongoing construction violates § 112(g)(2)(B). | Construction without MACT violates § 112(g)(2)(B). | § 112(g) does not apply post-delisting/foregone MACT. | Ongoing construction violates § 112(g)(2)(B). |
| Whether Harper v. Virginia Dept. of Taxation precludes application of § 112(g). | Harper retroactivity would shield Sandy Creek. | Harper does not apply; MACT duty remains. | Harper does not preclude application of § 112(g). |
| Whether the district court should abstain under Burford. | Burford abstention appropriate. | Abstention inappropriate. | District court did not abuse its discretion not to abstain. |
Key Cases Cited
- New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008) (vacated EPA's Delisting Rule; EGUs remain under § 112)
- Harper v. Virginia Dept. of Taxation, 509 U.S. 86 (Supreme Court 1993) (retroactivity of judicial decisions; applied to administrative rules has limits)
- Wilson v. Valley Elec. Membership Corp., 8 F.3d 311 (5th Cir. 1993) (five-factor Burford abstention test)
- New Orleans Public Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350 (1989) (abstention and federal jurisdiction principles under CAA)
- Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976) (aborating abstention framework and exceptional circumstances)