WildEarth Guardians v. PUBLIC SERVICE CO. OF COLO.
805 F. Supp. 2d 1134
D. Colo.2011Background
- Xcel sought a MACT determination for Comanche 3 under CAA §112(g) before/during construction.
- Delisting rule moved EGUs to CAMR, and Comanche 3 permit issued with CAMR terms in 2005.
- Construction began October 2005 and continued after CAMR-based permit issuance.
- New Jersey v. EPA (D.C. Cir. 2008) vacated the delisting, prompting MACT considerations anew.
- EPA/CDPHE required MACT updates; Xcel submitted revised MACT determinations in 2009–2010.
- Court previously partially dismissed and abstained; the issue remained whether retroactivity bars penalties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Retroactive MACT applicability after delisting vacatur | New Jersey vacatur requires retroactive MACT. | Chevron factors oppose retroactivity; rely on established CAMR precedent. | No retroactive application of delisting annulment; MACT standards upheld. |
| Continuing violation for construction without MACT | Ongoing construction violated §112(g) until MACT determined. | Regulators directed MACT updates; no ongoing violation under retroactivity posture. | Not ruled as ongoing violation requiring penalties given retroactivity analysis. |
| Penalties and costs against Xcel | WildEarth may recover penalties and fees for continued construction. | Claims moot/standing defenses; retroactivity favors Xcel; penalties inappropriate. | Plaintiff's claims dismissed with prejudice; penalties and fees denied. |
Key Cases Cited
- Chevron Oil Co. v. Huson, 404 U.S. 97 (U.S. 1971) (establishes retroactivity factors for new rules)
- Harper v. Virginia Dept. of Taxation, 509 U.S. 86 (U.S. 1993) (retroactivity requires notice and applicability to the case)
- New Jersey v. Environmental Protection Agency, 517 F.3d 574 (D.C. Cir. 2008) (delisting invalid; impact on MACT applicability)
- Sierra Club, Inc. v. Sandy Creek Energy Associates, L.P., 627 F.3d 134 (5th Cir. 2010) (post-delisting MACT retroactivity issues distinguished)
- United States v. Hoechst Celanese Corp., 128 F.3d 216 (4th Cir. 1997) (need for clear notice in penalties)
- WildEarth Guardians v. Lamar Utilities Board, 2010 WL 3239242 (D. Colo. 2010) (distinguishable facts; not controlling official reporter)