NATIONAL PARKS CONSERVATION ASSOCIATION, INC.; Sierra Club, Inc.; and Our Children‘s Earth Foundation, Plaintiffs-Appellants, v. TENNESSEE VALLEY AUTHORITY, Defendant-Appellee.
No. 05-6329.
United States Court of Appeals, Sixth Circuit.
Argued: Sept. 18, 2006. Decided and Filed: March 2, 2007.
480 F.3d 410
The judgment confirming the arbitration award is AFFIRMED.
ARGUED: George E. Hays, San Francisco, California, for Appellants. Frank H. Lancaster, Tennessee Valley Authority, Knoxville, Tennessee, for Appellee. ON BRIEF: George E. Hays, San Francisco, California, Wade V. Davies, Ritchie, Dillard & Davies, Knoxville, Tennessee, Mi
Before BATCHELDER and MOORE, Circuit Judges; COHN, District Judge.*
MOORE, J., delivered the opinion of the court, in which COHN, D.J., joined. BATCHELDER, J. (p. 420), delivered a separate dissenting opinion.
OPINION
KAREN NELSON MOORE, Circuit Judge.
Three environmental organizations brought this suit under the Clean Air Act‘s citizen-suit provisions, alleging that the Tennessee Valley Authority (“TVA“) shirked its duty to obtain appropriate pollution limitations at a power plant it operates in Clinton, Tennessee. The district court granted summary judgment to TVA, concluding that the statute of limitations had run on the plaintiffs’ claim for statutory penalties and that the concurrent-remedy rule barred their claim for injunctive relief. We conclude that the district court‘s ruling on the statute of limitations was in error, REVERSE its grant of summary judgment, and REMAND this case for further proceedings consistent with this opinion.
A. Regulatory Framework
The primary purpose of the Clean Air Act (“CAA“) is “to protect and enhance the quality of the Nation‘s air resources so as to promote the public health and welfare and the productive capacity of its population.”
- include enforceable emissions limitations and control measures, as well as compliance schedules,
id. § 7410(a)(2)(A) ; - provide for monitoring and analysis of air quality,
id. § 7410(a)(2)(B) ; - include an enforcement program,
id. § 7410(a)(2)(C) ; - regulate the construction and modification of sources of pollution,
id. ; - prohibit emissions that will harm other states’ efforts toward reducing air pollution,
id. § 7410(a)(2)(D)(i) ; - assure proper funding, staffing, and legal authority to carry out the SIP,
id. § 7410(a)(2)(E) ; and - require polluters to monitor the output of pollution and report the results to the state,
id. § 7410(a)(2)(F) .
After several years under this regulatory regime, Congress recognized that merely setting ceilings on emissions did not discourage existing polluters from increasing their pollution levels up to these limits, or encourage new polluters to minimize their emissions. To fix this defect, Congress amended the CAA in 1977 to include the “New Source Review” program. United States v. Duke Energy Corp., 278 F. Supp. 2d 619, 628 (M.D.N.C. 2003), aff‘d, 411 F.3d 539 (4th Cir. 2005), cert. granted sub nom. Envtl. Def. v. Duke Energy Corp., --- U.S. ---, 126 S. Ct. 2019, 164 L. Ed. 2d 778 (2006). New Source Review featured “provisions for the protection of areas with relatively clean air [known as] Prevention of Significant Deterioration,” or “PSD.” Duke Energy, 278 F. Supp. 2d at 628.
Under PSD, each SIP must “contain emission limitations and such other measures as may be necessary ... to prevent significant deterioration of air quality” by new sources of pollution or old sources that have undergone modifications.
Tennessee‘s SIP provides for separate permits for construction and operation of sources of air pollution, compare
The construction permitting requirements of Tennessee‘s SIP also provide:
In the case where a source or modification was constructed without first obtaining a construction permit, a construction permit may be issued to the source or modification to establish as conditions of the permit, the necessary emission limits and requirements to assure that these regulatory requirements are met. The appropriate enforcement action shall be pursued to insure that ambient air quality standards and other regulatory requirements will be met.
The Tennessee SIP‘s PSD program, however, does not apply to all modifications of emissions sources. Instead, the PSD regulations—a subset of the generally applicable construction regulations described above—apply only to new construction and to “major modifications” that would produce “a significant net emissions increase” of a pollutant.
B. Relevant Factual Background
TVA, a corporation created by statute with a board of directors appointed by the President,
Following an investigation, in November 1999, the EPA issued an administrative compliance order (“ACO“) concluding that the boiler overhaul at Bull Run constituted a modification of the plant, and therefore triggered the PSD provisions of the Tennessee SIP. TVA v. Whitman, 336 F.3d 1236, 1244 (11th Cir. 2003), cert. denied, 541 U.S. 1030 (2004). The ACO further required TVA to obtain all required permits and enter into a compliance agreement with the EPA. Id.
After extensive negotiations between TVA and the EPA and various amendments of the ACO, the EPA “decided to ‘reconsider’ the ACO by ‘adjudicating’ the issue of whether TVA had violated the CAA” before the EPA‘s Environmental Appeals Board (“EAB“), which substantially “affirmed” the ACO. Id. at 1245-46. The EPA chose to pursue the matter in front of the EAB rather than file an enforcement action because it believed that TVA could not be sued in federal court. Id. at 1239. TVA petitioned for review of the EAB‘s decision in the Eleventh Circuit, which ultimately concluded that critical aspects of the ACO procedure violated due process. Id. at 1256-60. For this reason, the court further concluded that ACOs lack legal consequence and cannot constitute final agency action. Accordingly, the court held that it lacked jurisdiction over the dispute, and that the EPA must prove violations of the CAA in an enforcement action brought in U.S. district court rather than through its ACO procedure. Id. at 1260. Apparently still clinging to its belief that it could not sue TVA in federal court, the EPA has not pursued such an action.
On February 13, 2001, Plaintiffs National Parks Conservation Association (“National Parks“) and Sierra Club filed their original complaint. They amended the complaint to add Our Children‘s Earth Foundation (“OCE“) as a plaintiff in November 2004. The essence of their complaint is that TVA violated the CAA and the Tennessee SIP by failing to obtain a PSD permit before it modified the Bull Run plant in 1988, and by continuing to operate the plant without such a permit, without having performed the required air-quality analysis, and without applying BACT. The result of these violations, ac
C. Procedural History
After National Parks and Sierra Club established organizational standing, the district court stayed all proceedings in April 2002 pending resolution of related litigation in the Eleventh Circuit. See TVA v. United States Envtl. Prot. Agency, 278 F.3d 1184 (11th Cir. 2002), op. withdrawn in part, Whitman, 336 F.3d 1236. The district court lifted the stay in July 2004, and the following month, TVA moved for summary judgment on its statute of limitations defense. Before ruling on TVA‘s motion, the district court granted the plaintiffs leave to file an amended complaint, which they did in November 2004.
On December 9, 2004, the parties jointly moved the district court to decide TVA‘s statute of limitations defense before ruling on its sovereign immunity defense. The district court granted this motion.
After a hearing on TVA‘s motion for summary judgment, the district court granted the motion and dismissed the plaintiffs’ complaint with prejudice. In its opinion, the district court concluded (1) that the plaintiffs did not establish a continuing violation of the CAA and the Tennessee SIP, (2) that the plaintiffs’ cause of action accrued in 1988, and (3) because the statute of limitations on the plaintiffs’ claim for civil penalties had run, the concurrent-remedy rule barred the plaintiffs’ claim for injunctive relief. The plaintiffs moved for reconsideration under
II. STANDARD OF REVIEW
We review de novo a district court‘s order granting summary judgment. DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir. 2004). We will affirm a grant of summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
III. ANALYSIS
A. Statute of Limitations
A five-year statute of limitations applies to any action “for the enforcement of any civil fine, penalty, or forfeiture.”
We recently concluded that “under any circumstances in which the State (or the United States) declines to raise sovereign immunity as a threshold defense, ... the federal courts have discretion to address the sovereign-immunity defense and the merits in whichever order they prefer.” Nair v. Oakland County Cmty. Mental Health Auth., 443 F.3d 469, 477 (6th Cir. 2006). Here, TVA did not raise sovereign immunity “as a threshold defense,” e.g., by way of motion to dismiss. Instead, it (and, for that matter, the plaintiffs) requested that the district court reserve a decision on TVA‘s immunity until after the court addressed TVA‘s statute of limitations defense. The district court did so, and because it concluded that the plaintiffs’ claims were time-barred, never reached the immunity issue, which therefore is not presently before us. Under Nair, the district court‘s reserving adjudication of TVA‘s immunity defense was within its discretion. Accordingly, the plaintiffs’ request for civil penalties remains part of the operative complaint, and their suit is one “for the enforcement of” civil penalties. We hold that
B. Continuing Violation
Because
Both parties, as well as the district court, framed this dispute as one regarding whether the plaintiffs have alleged a “continuing violation” of the CAA. Under the continuing-violation doctrine, the court can consider as timely all relevant violations “including those that would otherwise be time[-]barred.” Sharpe v. Cureton, 319 F.3d 259, 267 (6th Cir. 2003) (internal quotation marks omitted), cert. denied, 540 U.S. 876 (2003). See also Gandy v. Sullivan County, 24 F.3d 861, 864 (6th Cir. 1994) (“The doctrine ... may allow a court to impose liability on [a defendant] for acts committed outside the limitations period.“).
We previously have said that “[c]ourts have been extremely reluctant to apply this doctrine outside the context of Title VII.” LRL Props. v. Portage Metro Hous. Auth., 55 F.3d 1097, 1105 n. 3 (6th Cir. 1995). Since then, we nonetheless have applied the continuing-violation doctrine to claims for deprivations of civil rights. See, e.g., Tolbert v. Ohio Dep‘t of Transp., 172 F.3d 934 (6th Cir. 1999) (applying continuing-violation theory in action brought under
We need not decide whether the continuing-violation doctrine applies in environmental suits, as we conclude this case presents a series of discrete violations rather than a single violation that may or may not be “continuing” in nature. Courts have long distinguished continuing violations, which toll the applicable statutes of limitations, from repetitive discrete violations, which constitute independently actionable individual causes of action. For instance, in Gandy, we noted that each check based on a discriminatory method of calculating pay constitutes a separate violation of the Equal Pay Act, and we concluded that the plaintiff was entitled to a recovery based on any such checks received within the limitations period. 24 F.3d at 863-64. We further recognized, “Although [the cause of action is] ‘continuing in nature,’ invocation of the continuing violations doctrine is not necessary since plaintiffs ... are not attempting to file an otherwise untimely action and are not attempting collection of damages for conduct outside the limitations period.” Id. at 864. Additionally, in Knight v. Columbus, 19 F.3d 579 (11th Cir. 1994), cert. denied, 513 U.S. 929 (1994), the Eleventh Circuit noted, “The term ‘continuing violation’ suggests that the original violation ... is somehow the source of the [plaintiffs‘] present ability to recover.” Id. at 582. The Knight court continued, “The term ‘continuing violation’ also implies that there is but one incessant violation and that the plaintiffs should be able to recover for the entire duration of the violation, without regard to the fact that it began outside the statute of limitations.” Id. There, the plaintiffs sought recovery under the Fair Labor Standards Act (“FLSA“) for the city‘s failure to pay them for overtime they worked. The city argued that their claims were time-barred because the decision to classify the employees as exempt from the FLSA‘s overtime provisions occurred outside the limitations period. Noting that the conduct prohibited by the FLSA is failing to pay overtime, the court concluded that each paycheck that did not compensate the plaintiffs for overtime constituted a new violation. Accordingly, the court recognized that the plaintiffs did not assert a single “continuing violation,” but instead sought recovery for “a series of repeated violations of an identical nature” in which “each violation gives rise to a new cause of action,” id., and held that the plaintiffs were entitled to recover for each such violation that occurred within the limitations period.
Similarly, in the context of Title VII discrimination charges filed with the EEOC, the Supreme Court has instructed that “[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act.” Nat‘l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). Accordingly, the Court held that a plaintiff may recover for all discrete acts of discrimination that occur within the limitations period. Id. at 105, 114. See
Notably, in each of these cases, the court‘s analysis began with a careful examination of the specific conduct prohibited by the statute at issue.5 In Gandy, it was paying female employees unequally for equal work; in Knight, the prohibited conduct was failing to pay time-and-a-half for overtime hours worked; and in Morgan, it was discrete acts or occurrences of discrimination, such as suspension or termination. We follow these examples, and turn now to the precise conduct prohibited by the CAA.
C. Actionable Conduct
The CAA‘s citizen-suit provision authorizes the plaintiffs to sue anyone “who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of (A) an emission standard or limitation under this chapter.”
1. Failure to Apply BACT
The district court never determined whether the 1988 project at Bull Run constitutes a “major modification,” as is required for the PSD regulations to apply to the project. See
One provision of the PSD regulations states, “A major modification shall apply best available control technology for any pollutant for which it would result in a significant net emissions increase at the source.”
2. Failure To Obtain Appropriate Construction Permit After Construction
The plaintiffs also show that TVA violated its ongoing requirement to obtain the appropriate construction permit after completing construction. Tennessee‘s SIP forbids “the construction ... or the modification of an air contaminant source” unless the owner or operator first “applie[s] for and receive[s] from the Technical Secretary a construction permit for the construction or modification of such air contaminant source.”
However, under the Tennessee SIP, the obligation to obtain an appropriate permit is ongoing, and applies even to those sources that did not obtain the appropriate permits before construction: “In the case where a source or modification was constructed without first obtaining a construction permit, a construction permit may be issued to the source or modification to establish as conditions of the permit, the necessary emissions limits and requirements to assure that these regulatory requirements are met.”
Despite
TVA admits that it never received a permit containing emissions limitations under the Tennessee SIP‘s PSD provisions. Consequently, TVA has been, and remains, in violation of
D. Concurrent-Remedy Rule
Because we conclude that the plaintiffs’ claims for civil penalties are timely under
IV. CONCLUSION
For the foregoing reasons, we conclude that the plaintiffs’ claims for civil penalties are timely insofar as they relate to violations that occurred within five years of the date they filed their initial complaint. Accordingly, we REVERSE the district court‘s decision to the contrary, and REMAND for further proceedings consistent with this opinion.
ALICE M. BATCHELDER, Circuit Judge.
I respectfully dissent because I do not agree that this case involves a “series of discrete violations.” I believe this case involves, at most, a single violation that occurred in 1988, and therefore, its statute of limitations expired five years later. I would affirm the district court.
Under Tennessee law, the TVA was required to obtain two separate permits: a construction permit, see
By way of example, suppose I contracted with a carpenter to repair the roof of my home. If he failed to do so, then he would have breached the contract—a single violation. Under this scenario, I suffer a new harm every time it rains, i.e., every time water comes into my living room through the faulty roof. The carpenter does not, however, breach the contract anew every time it rains; that is, the carpenter does not commit a new and discrete violation. I believe the same reasoning applies to the present case, and this reasoning is consistent with Tolbert v. Ohio Department of Transportation, 172 F.3d 934, 940 (6th Cir. 1999) (distinguishing “continuing ill effects” from “continuing unlawful acts“). To complete the present example: if a violation (rather than merely a new harm) occurs each time it rains, then the corollary is that it must rain in order for a violation to occur, and under such a theory, I would not be able to sue the carpenter for breaching the contract to repair my roof until after I had suffered through at least one rain storm. In truth, however, I could sue the carpenter as soon as I became aware of his breach of the contract; I need not wait for it to rain, and if I were to wait, I would likely be held accountable for such a delay.
Returning to the present case, let us assume, arguendo, that the TVA was in fact required to obtain a construction permit before beginning its modification of the Bull Run plant in 1988. By failing to do so, it committed a violation. Under this scenario, the plaintiffs may have suffered a new harm every time thereafter that the plant was in operation (i.e., emitting pollutants above the BACT levels), but just as with the carpenter, the TVA did not violate the construction permit requirement anew every time the plant was operating. That is, the TVA did not commit a new and discrete violation of the construction permit requirement every time it operated the plant, particularly if the TVA was in compliance with its operating permit. To complete this reasoning; if a violation (rather
Because I find this “discrete violations” approach unsupported by law or reason, I must respectfully dissent. This seems to me to be the plaintiffs’ strained attempt to circumvent their failure to act within the statute of limitations. If they have a claim that the TVA is violating its operating permit by emitting pollutants in excess of BACT levels, then they should file that claim. The present claim, however, expired in 1993. I would affirm.