07/13/2010 12:25:00 PM EST
Marten Law on National Parks Conservation Ass'n v. TVA: Federal District Court Ruling May Undercut Enforcement and Citizen Suit Challenges Aimed at Coal-Fired Power Plants
By Dustin Till, Associate, Marten Law Group PLLC
“The recent opinion in National Parks Conservation Association v. TVA took the frequently contested question of what constitutes ‘routine’ maintenance of coal-fired power plants in a new direction” writes Dustin Till. “That case is the latest decision in a long-running dispute over whether Tennessee Valley Authority (TVA) triggered permitting requirements under the Clean Air Act's Prevention of Significant Deterioration (PSD) regulations when it upgraded its Bull Run power plant in 1988. In its fact-intensive order, the U.S. District Court for the Eastern District of Tennessee concluded that, although TVA's improvements cost millions of dollars and extended the facility's operational life by 20 years, they fell within the ‘routine maintenance, repair, and replacement’ exemption of the PSD regulations. This ruling may undercut agency enforcement actions and citizen suits aimed at modifications to existing facilities, like the nation's aging fleet of coal-fired power plants. But it also may set up intra- and extra-circuit splits, as district courts in the Sixth and Seventh Circuits have ruled that similar activities are not exempted from PSD preconstruction permitting requirements. It remains to be seen whether the TVA decision marks a new path or a dead end.”
“In a sharp shift from the Bush Administration,” the author reports, “the Department of Justice and EPA under President Obama have revived NSR enforcement efforts against coal-fired power plants. These actions tend to focus on the substantial or complete replacement of various power plant components, with one of the key issues being whether those projects constituted ‘routine’ maintenance and repair. Similar PSD enforcement cases have been brought against other industrial sources, such as refineries. Judge Varlan's order in National Parks Association v. TVA may have implications for EPA and citizen NSR enforcement actions, particularly in the coal-dependent Sixth Circuit.”
Dustin Till explains the Clean Air Act New Source Review program, the TVA Bull Run Facility, and the procedural history of National Parks Association v. TVA, provides an analysis of the decision, and discusses the implications of the decision.
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As a lawyer with the Marten Law Group, Dustin Till practices environmental and land use litigation with a special focus on climate change issues, permitting, and environmental review in the Pacific Northwest. Dustin represents clients in Washington, Oregon, Idaho and Alaska on a broad range of environmental matters, including permitting and energy infrastructure siting. Dustin shares his climate change expertise on behalf of Marten Law Group writing ongoing articles for Lexis Nexis’ Environmental Law and Climate Change Center. Dustin has appeared before the Eighth Circuit Court of Appeals, federal district court and the Washington State Court of Appeals.