WildEarth Guardians v. Public Service Company
690 F.3d 1174
10th Cir.2012Background
- WildEarth sues PSCo under the Clean Air Act alleging construction of Comanche 3 Unit violated MACT requirements without a MACT determination.
- Regulatory regime shifted in 2008 when the D.C. Circuit struck down the Delisting Rule, reinstating MACT requirements for coal plants.
- PSCo had begun construction in 2005 under permits that did not include a MACT determination due to the Delisting Rule.
- PSCo settled with environmental groups in 2004 to install mercury controls beyond then-current requirements, and continued construction.
- Construction completed in 2009-2010; PSCo later received a MACT determination from Colorado authorities in 2010.
- District court dismissed, concluding applying the 2008 decision retroactively would be inequitable; on appeal, the Tenth Circuit held the case moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the case moot under Laidlaw redressability standard? | WildEarth argues penalties deter future violations; ongoing deterrence is redressable. | PSCo argues post-compliance renders the dispute moot with no redressable injury. | Case dismissed as moot; no live redressable controversy. |
| Do civil-penalty claims survive mootness? | Penalties could deter future noncompliance and redress injuries. | Once in compliance, penalties cannot redress past or future injuries. | Penalties moot; no deterrent value or redressable injury. |
| Can a Supplemental Environmental Project salvage standing here? | SEP could redress injuries and sustain standing. | SEP generally cannot cure lack of injury or standing here. | SEP cannot save standing; not adequately redressing plaintiff's injuries. |
| Is injunctive relief moot given full compliance? | Continued requests for relief could address broader emissions concerns. | No continuing violation; no basis for prospective relief. | Injunctive relief moot; nothing left to enforce. |
Key Cases Cited
- Steel Co. v. Citizens for a Better Environment, 523 F.3d 83 (U.S. Supreme Court 1998) (standing redressability; penalties cannot support standing when no ongoing injury)
- Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167 (U.S. Supreme Court 2000) (deterrence and mootness in citizen suits; assessments of standing and mootness after compliance)
- Laidlaw Environmental Services, Inc. v. Friends of the Earth, Inc., 528 U.S. 181 (U.S. Supreme Court 2000) (deterrence as redressability; conditions under which penalties can sustain standing)