Sierra Club, Inc. v. SANDY CREEK ENERGY ASSOCIATES
627 F.3d 134
| 5th Cir. | 2010Background
- Sandy Creek Energy Associates is constructing a coal-fired plant in Riesel, Texas, under §112(g) MACT requirements.
- EPA removed EGUs from §112 list in 2005 Delisting Rule, delaying MACT determinations for Sandy Creek.
- May 2006 TCEQ determined no case-by-case MACT determination was needed due to the Delisting Rule and Sandy Creek commenced pre-construction activity.
- Construction began January 7, 2008, before the D.C. Circuit vacated the Delisting Rule in March 2008.
- March 14, 2008 mandate issued; August 2008 Sierra Club filed suit alleging §112(g)(2)(B) violation for lack of MACT determination.
- Delisting Rule vacatur was followed by the District Court’s 2009 summary judgment favoring Sandy Creek; the Fifth Circuit reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does §112(g)(2)(B) bar construction without MACT determination? | Sierra Club: ongoing construction violates §112(g)(2)(B) absent MACT. | Sandy Creek: Delisting Rule negated MACT obligation; no current MACT required. | Yes; construction without MACT violates §112(g)(2)(B). |
| Did TCEQ make a proper MACT determination for Sandy Creek? | TCEQ never issued a final MACT determination for the plant. | TCEQ concluded no MACT determination was necessary due to Delisting Rule. | No proper MACT determination was made. |
| Should the Harper retroactivity doctrine excuse §112(g)(2)(B) obligations? | Harper retroactivity could affect application of New Jersey decision. | Harper does not absolve ongoing §112(g)(2)(B) duties; vacatur rule not retroactive to preclude MACT. | Harper does not excuse current §112(g)(2)(B) duties; MACT still applies. |
| Was abstention under Burford proper? | Burford abstention should be considered given state regulatory context. | Abstention inappropriate; federal enforcement of CAA preempts state-prompted abstention. | No abuse of discretion; did not abstain. |
Key Cases Cited
- New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008) (vacatur of Delisting Rule; EGUs remain subject to MACT under §112)
- Harper v. Virginia Dept. of Taxation, 509 U.S. 86 (1993) (retroactivity of judicial decisions; not controlling here)
- Wilson v. Valley Electric Membership Corp., 8 F.3d 311 (5th Cir. 1993) (five Burford abstention factors)
- New Orleans Public Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350 (1989) (abstention doctrine; state vs federal claims)
- Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976) (exceptional circumstances for abstention framework)
- GM Corp. v. United States, 496 U.S. 530 (1990) (federal-state cooperation in comprehensive regulatory program)
- New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008) (delisting rule vacated; MACT obligations reinstated)