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United States v. EME Homer City Generation, L.P.

United States Court of Appeals for the Third Circuit

May 15, 2013, Argued; August 21, 2013, Filed

Nos. 11-4406, Nos. 11-4407, Nos. 11-4408

Opinion

 [*277]  SMITH, Circuit Judge.

The owners of a coal-fired power plant failed both to obtain a preconstruction permit and to install certain pollution-control technology before making changes to the plant. The Environmental Protection Agency and several states say the owners were required to do so. But the EPA1 did not cry foul until more than a decade after the changes, well after the owners had sold the plant. Now the EPA wants to force the former owners to obtain the missing [*278]  preconstruction permit and to install the missing pollution controls on a plant they no longer own or operate. And they seek damages and an injunction against the current owners who neither  [**3] owned nor operated the plant when it was allegedly modified illegally. The relief now sought would require us to distort plain statutory text to shore up what the EPA views as an incomplete remedial scheme. That we cannot do, and so we will affirm the District Court's dismissal of their claims.

A. The Homer City Generation Power Plant goes online in 1969, and Congress enacts the Clean Air Act.

In the 1960s, the Pennsylvania Electric Company (Penelec) and the New York State Electric & Gas Corporation (NYSEG) built the Homer City Generating Station ("the Plant"), a coal-burning power plant in Indiana County, Pennsylvania. JA66. The Plant's first two burners went online at the end of the decade. Id. At that time, the Clean Air Act was little more than a federally funded research program on air pollution, the EPA did not exist, and the few enforceable standards in place did not affect the Plant's construction and operation. See Air Quality Act of 1967, Pub. L. No. 90-148, 81 Stat. 485-507 (expanding studies into air pollutants, emissions, and control techniques); Clean Air Act Amendments of 1966,  [**4] Pub. L. No. 89-675, 80 Stat. 954-55; Clean Air Act of 1963, Pub. L. No. 88-206, 77 Stat. 392-401; Air Pollution Control Act of 1955, Pub. L. No. 84-159, 69 Stat. 322 (providing funds for federal research into air pollution).

B. Congress enacts the Clean Air Act, which grandfathers pre-existing pollution sources (like the Plant) out of its requirements until they are "modified."

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727 F.3d 274 *; 2013 U.S. App. LEXIS 17477 **; 43 ELR 20194; 77 ERC (BNA) 1449; 2013 WL 4437219

UNITED STATES OF AMERICA, COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION; STATE OF NEW YORK; STATE OF NEW JERSEY, (Intervenors in District Court) v. EME HOMER CITY GENERATION, L.P.; HOMER CITY OL1, LLC; HOMER CITY OL2, LLC; HOMER CITY OL3, LLC; HOMER CITY OL4, LLC; HOMER CITY OL5, LLC; HOMER CITY OL6, LLC; HOMER CITY OL7, LLC; HOMER CITY OL8, LLC; NEW YORK STATE ELECTRIC AND GAS CORPORATION; PENNSYLVANIA ELECTRIC COMPANY, United States of America, Appellant;UNITED STATES OF AMERICA, COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION; STATE OF NEW YORK; STATE OF NEW JERSEY, (Intervenors in District Court) v. EME HOMER CITY GENERATION, L.P.; HOMER CITY OL1, LLC; HOMER CITY OL2, LLC; HOMER CITY OL3, LLC; HOMER CITY OL4, LLC; HOMER CITY OL5, LLC; HOMER CITY OL6, LLC; HOMER CITY OL7, LLC; HOMER CITY OL8, LLC; NEW YORK STATE ELECTRIC AND GAS CORPORATION, State of New York, Appellant;UNITED STATES OF AMERICA, COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION; STATE OF NEW YORK; STATE OF NEW JERSEY, (Intervenors in District Court) v. EME HOMER CITY GENERATION, L.P.; HOMER CITY OL1, LLC; HOMER CITY OL2, LLC; HOMER CITY OL3, LLC; HOMER CITY OL4, LLC; HOMER CITY OL5, LLC; HOMER CITY OL6, LLC; HOMER CITY OL7, LLC; HOMER CITY OL8, LLC; NEW YORK STATE ELECTRIC AND GAS CORPORATION, Commonwealth of Pennsylvania, Department of Environmental Protection; State of New Jersey, Appellants

Prior History:  [**1] On Appeal from the United States District Court for the Western District of Pennsylvania. District Court No. 2-11-cv-00019. District Judge: The Honorable Terrence F. McVerry.

United States v. EME Homer City Generation L.P., 823 F. Supp. 2d 274, 2011 U.S. Dist. LEXIS 117644 (W.D. Pa., 2011)

CORE TERMS

clean air, current owner, Plant, modification, modified, former owner, district court, emissions, permits, violations, injunction, pollution, canons, constructed, compliance, permitting process, operating permit, authorize, conditions, install, regulated, incomplete, injunctive relief, new source, preconstruction, limits, air pollution, emitting, ongoing, terms

Environmental Law, Air Quality, Prevention of Significant Deterioration, Operating Permits, Governments, Legislation, Interpretation, Enforcement, General Overview, Administrative Law, Judicial Review, Standards of Review, Rule Interpretation, Deference to Agency Statutory Interpretation, Civil Procedure, Appeals, Civil Actions, Remedies, Injunctions, Mandatory Injunctions, Grounds for Injunctions, Likelihood of Success, Reviewability of Lower Court Decisions, Preservation for Review