905 F.3d 874
5th Cir.2018Background
- The United States sued Luminant Generation Co. and Big Brown Power Co. under Clean Air Act § 7475(a), alleging they commenced major modifications without required preconstruction permits and BACT, seeking civil penalties and injunctive relief.
- The alleged unpermitted construction events at multiple units occurred between 2005 and 2009; suit was filed August 16, 2013.
- Defendants moved to dismiss several § 7475(a) claims as time-barred under 28 U.S.C. § 2462 (five-year limitations for civil fines/penalties); the district court dismissed those claims and also dismissed injunctive claims for lack of jurisdiction.
- The Fifth Circuit affirmed dismissal of civil-penalty claims, holding § 7475(a) violations accrue at the start of unpermitted construction (a one-time event), so claims based on construction >5 years before suit are time barred.
- The court reversed dismissal of the government’s injunctive-relief claims, holding the sovereign is not subject to the concurrent-remedies doctrine absent clear congressional consent and § 2462 does not by its text bar non-penalty equitable relief; remanded for further consideration of injunctive relief’s appropriateness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does a § 7475(a) violation accrue for purposes of § 2462? | A violation accrues anew each day the modified facility operates without a permit (daily continuing violation). | A violation is a one-time event that accrues when unpermitted construction or modification begins. | Accrual occurs at the moment unpermitted construction begins; operation does not create new § 7475(a) violations. |
| Are civil-penalty claims under § 7475(a) time-barred when suit is filed >5 years after construction? | Some claims (e.g., a boiler-operation change) may fall within five years; otherwise daily-operation theory saves many claims. | All claims based on construction >5 years before suit are barred. | Claims based on construction that began more than five years before filing are time-barred; district court correctly dismissed those civil-penalty claims. |
| Does 28 U.S.C. § 2462 bar injunctive (equitable) relief seeking compliance for past § 7475(a) violations? | § 2462’s five-year limit should not bar equitable relief for the sovereign; injunctive relief is not a penalty. | Concurrent-remedies doctrine and § 2462 bar equitable relief tied to time-barred legal claims. | § 2462 does not on its face bar non-penalty equitable relief; concurrent-remedies doctrine does not apply to the United States acting in its sovereign capacity absent clear congressional consent. Court reversed dismissal of injunctive claims. |
| Did the district court lack jurisdiction to award injunctive relief for past § 7475(a) violations? | The government argued district courts have jurisdiction under § 7413(b) to restrain violations and award appropriate relief. | District court assumed § 7477 displaced § 7413(b) and declined jurisdiction over injunctive relief for past violations. | The Fifth Circuit found no basis to deny jurisdiction; § 7413(b) grants district courts authority to award injunctive and other appropriate relief. Remanded for further factual/legal consideration. |
Key Cases Cited
- Sierra Club v. Oklahoma Gas & Elec. Co., 816 F.3d 666 (10th Cir. 2016) (held § 7475(a) violation occurs during construction, not daily operation)
- United States v. EME Homer City Generation, L.P., 727 F.3d 274 (3d Cir. 2013) (similar holding that post-construction operation does not create fresh § 7475(a) violations)
- United States v. Midwest Generation, LLC, 720 F.3d 644 (7th Cir. 2013) (concluded violations accrue during construction; discussed limits on injunctive relief)
- Sierra Club v. Otter Tail Power Co., 615 F.3d 1008 (8th Cir. 2010) (preconstruction-only accrual conclusion)
- Nat’l Parks & Conservation Ass’n v. Tennessee Valley Auth., 502 F.3d 1316 (11th Cir. 2007) (addressed concurrent remedies and scope of relief under CAA)
- United States v. Marine Shale Processors, 81 F.3d 1329 (5th Cir. 1996) (distinguished; addressed permitting for operations and daily penalties)
- E.I. Du Pont De Nemours & Co. v. Davis, 264 U.S. 456 (1924) (sovereign immunity principle: government not subject to time limitations absent clear congressional consent)
- Kokesh v. SEC, 137 S. Ct. 1635 (2017) (later Supreme Court decision treating certain disgorgement remedies as penalties under § 2462; relevant to penalty/equity distinction)