Petition for Writ of Certiorari — CleanCOALition v. TXU Power (No. 08-533)

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Supreme Court, US. *

15 FILE |

10 No. 08- 08-53 3007 20 2008

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

CLEANCOALITION; ROBERTSON COUNTY:

OUR LAND, OUR LIVES,

Petitioners,

TXU POWER, doing business as TXU GENERATION

COMPANY LP; OAK GROVE MANAGEMENT

COMPANY LLC; and TXU CORPORATION,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED States Court or APPEALS

FOR THE FIFTH CIRCUIT

ee ——

— —— —

PETITION FOR A WRIT OF CERTIORARI

FREDERICK W. Appison, III

Counsel of Record

NOLAN C. KNIGHT

Munscu Harpt Korpr & Harr, PC.

3800 Lincoln Plaza

500 North Akard

Dallas, Texas 75201

(214) 855-7500

Counsel for Petitioners

218782 cr

COUNSEL PRESS

(800) 274-3321 » (800) 359-6859

QUESTIONS PRESENTED FOR REVIEW

This matter relates to Clean Air Act (CAA or Act“)

section 304(a)(1) and 304(a)(3), 42 U.S.C. § 7604(a)(1) and

7604(a)(3). Petitioners CleanCOALition and Robertson

County: Our Land, Our Lives (collectively, “CleanCOA Lition”)

contend Congress: (1) enacted CAA section 304(a)(1) to

allow private citizens to, inter alia, stop violations of the

CAA that can occur before a person obtains a CAA permit,

and (2) enacted CAA section 304(a)(3) to allow citizens to

stop persons from constructing CAA facilities without

permits that comply with the CAA. Various courts,

including the courts in this matter, have disagreed with

these constructions of the statutory provisions. In so doing,

CleanCOALition contends courts have eliminated causes

of action central to Congress’s intended objectives under

and enforcement of the CAA.

The district court in this matter held, though there is

conflict between courts, the Burford abstention doctrine

is a valid basis for courts to forgo jurisdiction over section

304 citizen suits. The questions presented for review

therefore are as follows:

1. Whether CAA section 304(a)(1) authorizes a citizen

suit to redress violations that occur before a

person obtains a CAA permit.

2. Whether CAA section 304(a)(3) authorizes a citizen

suit against entities that propose to construct or

construct a CAA facility without a permit that

complies with the CAA.

3. Whether the “abstention” doctrine created in

Burford v. Sun Oil Co., 319 U.S. 315 (1948), is

inapplicable to CAA citizen suits as a matter

of law.

os we

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rules 14.1(b) and 29.6,

Petitioners CleanCOALition state they do not have a

parent corporation, and no publicly held corporation

owns 10% or more of CleanCOALition.

iti

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .............

CORPORATE DISCLOSURE STATEMENT ............

TABLE OF CONTENTS ...........

TABLE OF APPENDICES .........

TABLE OF CITED AUTHORITIES ...

OPINIONS BELOW ..............

JURISDICTIONAL STATEMENT ....

STATUTE INVOLVED ............

STATEMENT OF THE CASE .......

*enereeneee#eeneeeneen

A. Bases for CleanCOALition’s Citizen Suit

B. The CAA Permitting Process ..........

C. TXU’s PSD Permit and Related

U once ccicnes

D. Timing of PSD Obligations ............

E. The Proceedings Below

Page

Contents

REASONS FOR GRANTING THE PETITION ...........

r ie ae ert ae ee

Congress Enacted CAA Section 304(a)(1)

to Allow Citizens to Sue to Stop Pre-

IE I A ce Uda ek Chk eebawe

1. Pre-permit violations are actionable

under the plain language of section

304(a)(1) and the structure of the

CBE. évctivcepanecsepadicdiedes<ss

a. Pre-permit conditions and

requirements under part C of

subchapter I of the CAA

constitute actionable emissions

standards or limitations ........

i. Rules of grammar support

CleanCOALition’s construction

of CAA section 304(f)(3) ....

ii. The structure of the CAA

supports CleanCOALition’s

construction of CAA section

‘

;

Contents

b. The standards and limitations in

Texas's SIP constitute actionable

emissions standards or limitations

2. The matters at issue in this lawsuit

can be resolved and the publie

interest will be served if the Court

resolves the proper operation of CAA

// O 2

C. The Matters in this Lawsuit Can Be

Resolved and the Publie Interest Will Be

Served if the Court Resolves whether

CAA Section 304(a) (3) Operates to

Prevent Construction of Plants Based on

Defective PSD Permits ................

D. The Matters in this Lawsuit Can Be

Resolved and the Public Interest Will Be

Served if the Court Resolves whether

the Burford Abstention Doctrine Is

Inapplicable to CAA Citizen Suits ......

1. Historical basis for the Burford

abstention doctrine ...............

2. Burford abstention should not be

extended to CAA citizen suits ......

Page

One bel fa Me ee, sel —

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Dr = ee a Gla ee a a

ay eras,

Contents

3. Federal courts have exclusive

jurisdiction over CAA citizen suits ...

a. In the CAA, Congress used the

phrase “district courts” regarding

only federal courts ............

b. Contextual language necessitates

construction of “district courts” to

mean federal district courts ....

r Let SEO OM ee 4.80 68 8.823 ¢ &..@

vii

TABLE OF APPENDICES

Appendix A — Opinion Of The United States

Court Of Appeals For The Fifth Circuit Filed

July 21, 2008

Appendix B — Order Of The United States

District Court For The Western District Of

Texas, Waco Division Dated And Filed May 21,

viii

;

TABLE OF CITED AUTHORITIES

Page

Cases | :

Allison Engine Co., Inc. v. United States, }

428 S. Ct. 2128. (2008) ..................... 19

Brewer v. City of Bristol, 4

577 F. Supp. 519 (E. D. Tenn. 1983) ......... 31 7

Burford u Sun Oil Co., |

. passim j

Christensen v. Harris County, ’

D sec hdecdecewes 32

CleanCOALition v. TXU Power, :

536 F.3d 469 (5th Cir. 2008) ................ 1 :

Comm r v. Lundy, g

, ͤ = 36 2

Comm’r of Internal Revenue u Engle,

, 9 f

Culbertson u Coats Am., Inc., 1

913 F. Supp. 1572 (N. D. Ga. 19950ĩ„2ũ2ů 31

Duncan v. Walker, |

D 2 a

Ellis u Gallatin Steel Co, ‘

390 F.3d 461 (6th Cir. 2004) ................ 31

Cited Authorities

Page

Flora v. United States,

V cies benescecees 18

Freeman u Cincinnati Gas & Elec. Co.,

No. 1:05 CVI 79, 2005 WL 2837466

J | 26

Freytag u Comm r of Internal Revenue,

r 32

Griffin u Oceanic Contractors, Inc.,

„„ „„ „ „ 36

Hathorn v. Lovorn,

SE 33

Hempstead County Hunting Club

v. Sw. Elec. Power Co.,

No. 08-CV-4038, 2008 WL 2705570

„„ „„ 10

Jones u. United States,

V 21

L. E. A. D. u Exide Corp.,

No. Civ. 96-3030, 1999 WL 124473

(E.D. Pa. February 19, 1999) ............... 31

Lujan v. Defenders of Wildlife,

e oh dorccccisreteccccncens 9

ae he

rere

7 de t °

wre 8 &

Pe ee Se a” eee eee Fe ee er

Cited Authorities

Page

Natural Res. Def Council, Inc. v. Train,

510 Fd 692 (D.C. Cir. 1974) ............... 10

Or. State Pub. Interest Research Group

v. Pac. Coast Seafood Co.,

341 F Supp. 2d 1170 (D. Or. 2004) .......... 31

62 Cases, More or Less, Each Containing Six

Jars of Jam v. United States,

/ ewcesedcoccees 19

Student Pub. Interest Research Group

of New Jersey, Inc. v. PD. Oil & Chem.

Storage, Inc.,

627 F. Supp. 1074 (D.N.J. 1986) ............ 31

Sugarloaf Citizens Ass n u Montgomery County,

No. 93-2475, 1994 WL 447442

(4th Cir. August 17, 1994) ................ passim

Weiler v. Chatham Forest Prods., Inc.,

392 F.3d 532 (2d Cir. 2004) ............... passim

Cited Authorities

Page

Statutes

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42 U.S.C. EE PabdeCeadesveveweewes seus wns 5, 34

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D os sibs cede watcha evawe passim

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D Sov akucnenee yeah onal 35

een 35

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EE 7]˙?ĩs?⁵t“1 37

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30 TRX. ADMIN. CoDE § 116.111 ................ 7

30 Tex. ADMIN. Cope § 116.116 ................ 7

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Cited Authorities J

Page 3

Other Authorities 3

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H. Conf. Rep. No. 564, at 173 (1977), *

as reprinted in 1977 U. S. C. C. A. N. 1502 .... 20, 29

Courts (including the United States Court of

Appeals for the Fifth Circuit and district court in this

matter) have established precedents that subvert

Congress’s creation of causes of action central to

enforcement of the CAA. This has prevented

CleanCOALition, and otherwise will prevent citizens,

from enforcing Congress’s objectives under the CAA.

CleanCOALition therefore respectfully requests that

the Court grant this Petition for Writ of Certiorari.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Fifth Circuit is reported at CleanCOALition v.

TXU Power, 536 F.3d 469 ‘5th Cir. 2008) and reproduced

herein as Appendix (“Appx.”) Exhibit A. The opinion of

the district court is not reported, but it is reproduced

herein as Appx. Exhibit B.

JURISDICTIONAL STATEMENT

Respondents TXU Power, Oak Grove Management

Company LLC, and TXU Corp. (collectively, TXU are

violating CAA emissions standards and limitations and

propose to construct a CAA facility without a permit that

complies with the CAA. On December 1, 2006,

CleanCOALition sued TXU in the district court under

CAA section 304(a)(1) and 304(a)(3), 42 U.S.C.

§ 7604(a)(1) and 7604(a)(3).

The district court dismissed CleanCOALition’s

claims by Order dated May 21, 2007. See Appx. Exhibit

B. CleanCOALition appealed to the United States Court

of Appeals for the Fifth Circuit.

On July 21, 2008, the Fifth Circuit affirmed the

district court’s dismissal of CleanCOALition’s claims. See

Appx. Exhibit A. CleanCOALition did not seek rehearing

of the Fifth Circuit’s ruling, and it has not sought

extensions of time to file its Petition for Writ of Certiorari

in this Court.

Under 28 U.S.C. § 1254(1), this Court has

jurisdiction to review, on a writ of certiorari, the Fifth

Circuit’s July 21, 2008 ruling.

STATUTE INVOLVED

The relevant statute in this matter is CAA section

304, 42 U.S.C. § 7604, which provides:

(a) Authority to bring civil action; jurisdiction

... any person may commence a civil action

on his own behalf—

(1) against any person .. . who is

alleged to have violated .. . or to be

in violation of... an emission

standard or limitation under this

chapter

(3) against any person who proposes

to construct or constructs any new

or modified major emitting facility

without a permit required under

part C of subchapter I of this chapter

(relating to significant deterioration

of air quality) or part D of subchapter

aed © eben > bp Nr FWD

4 I of this chapter (relating to

nonattainment) or who is alleged to

have violated . . . or to be in violation

of any condition of such permit.

Piss

For purposes of this section, the term

“emission standard or limitation under this

chapter” means—

(3) any condition or requirement of

a permit under part C of subchapter

I of this chapter . . ; or

(4) any other standard, limitation, or

schedule established.. . under any

applicable State implementation plan

..., or] any permit term or condition

* a PS 4 3 1 N > > et 8 5 n 1

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STATEMENT OF THE CASE

A. Bases for CleanCOALition’s Citizen Suit

Appellants Clean COALition are environmental

interest groups whose members are concerned with the

environmental health of the Southwest United States,

including air quality! Appellees TXU are utility interests

that propose to construct a pulverized coal-fired power

plant in Robertson County, Texas.? CleanCOALition’s

members reside in Robertson County, and elsewhere,

and will be adversely affected by emissions from TXU’s

proposed plant.“

CleanCOALition sued TXU under CAA section

304(a)(1) and 304(a)(3), because TXU has violated

emissions standards and limitations mandated by the

CAA.“ TXU also proposes to construct its power plant

without a permit that complies with the CAA.®

1 Record on Appeal (“ROA”), pp. 2-3 As permitted by

Supreme Court Rule 12.7, CleanCOALition cites the ROA

maintained by the clerks of the lower courts.

ROA, pp. 1, 5-6, 10, 11. The plant name is Oak Grove Steam

Electric Station.

ROA, pp. 3-5.

* ROA, pp. 1-44.

Id.

;

B. The CAA Permitting Process

The United States Environmental Protection

Agency (“EPA”) authorizes states, including Texas, to

issue permits for the construction of CAA facilities. See

42 U.S.C. § 7410(a)(2)(C).® The air permitting process

in Texas is administered by the Texas Commission on

Environmental Quality (“TCEQ”).’

The TCEQ may issue several types of permits under

the CAA, but the permit relevant to this matter is a

construction permit issued pursuant to the CAA’s

Prevention of Significant Deterioration (“PSD”) rules. See

42 U.S.C. §§ 7470-7492. The TCEQ implements these rules,

as well as other provisions of the CAA, through a

compilation known as the Texas “State Implementation

Plan” (the “SIP”). See generally 42 U.S.C. § 7410(a)(2)(C).

C. TXU’s PSD Permit and Related Obligations

In July and December 2005, TXU submitted

applications to the TCEQ seeking a PSD permit to

construct its proposed power plant.“ In connection with

its efforts to obtain the PSD permit, TXU was obligated,

but failed, to satisfy “conditions and requirements” that

are prerequisites for obtaining a valid PSD permit. For

This authorization does not grant, however, states

jurisdiction over CAA citizen suits. Congress mandated such

suits should be litigated in federal court. See 42 U.S.C.

§ 7604(a).

ROA, pp. 100-105.

ROA, pp. 5-6. The TCEQ since has issued TXU a PSD

permit.

—

‘

r ee NM N eT ee Cie

instance, the PSD program requires compliance with

the conditions and requirements found in part C of

subchapter I of the CAA (CAA sections 160-169,

42 U.S.C. §§ 7470-7492), which obligate persons to, inter

alia, demonstrate:

1. “emissions from construction or operation of [a]

facility will not cause, or contribute to, air

pollution in excess of” limits established under

the CAA. 42 U.S.C. § 7475(a)(3) (emphasis

added);

2. “the proposed facility is subject to the best

available control technology ... .” 42 U.S.C.

§ 7475(a)(4) (emphasis added); and

3. “there has been an analysis of any air quality

impacts projected for the area as a result of

growth associated with such facility ... .”

42 U.S.C. § 7475(a)(6) (emphasis added).

The term ‘best available control technology’ means an

emission limitation based on the maximum degree of reduction

of each pollutant . . . which the permitting authority .. .

determines is achievable . . . through application of production

processes and available methods, systems, and techniques,

including fuel cleaning, clean fuels, or treatment or innovative

fuel combustion techniques for control of each such pollutant.”

42 U.S.C. § 7479(3) (emphasis added).

—

D. Timing of PSD Obligations

TXU was obligated to complete the foregoing,

among other, conditions and requirements before it could

receive a valid PSD permit. By way of example, the

above-referenced conditions and requirements are

accompanied by the admonition: “No major emitting

facility .. may be constructed .. unless... the proposed

permit has been subject to a review in accordance with

this section . . .” 42 U.S.C. § 7475(a)(2) (emphasis

added).

Texas regulations implementing the CAA also

provide: “In order to be granted a permit . . . the

application must include. . . information which

demonstrates that emissions from the facility . . . meet

... Best available control technology ... .” 30 Tex. ADMIN.

CopE § 116.111(a)(2)(C) (emphasis added). The

regulations also provide: “The following are the

conditions upon which a permit. . [is] issued:

representations with regard to construction plans and

operation procedures in an application for a permit.

30 TEx. ADMIN. CoDE & 116.116(a) (emphasis added)."°

Accordingly, in practice, an entity that seeks to

construct a CAA facility undertakes activities to satisfy

PSD conditions and requirements before submitting a

PSD permit application. The pre-permit stage therefore

10 See also 1976 Texas State Implementation Plan § XIV

(Rules & Regulations) at Rule 603.1, found at http://www.tceq.

state.tx.us/assets/public/implementation/air/sip/sipdocs/1976-

SIP/1976_sip_section_xiv.pdf (enumerating what a CAA

applicant must submit in an application and demonstrate before

obtaining a PSD permit).

‘4

‘

;

7 r r

is when a person will either comply or fail to comply with

the relevant PSD conditions and requirements.

E. The Proceedings Below

TXU has violated the CAA, because it has not complied

with the PSD conditions and requirements. The plain

language of CAA section 304(a)(1) and 304(a)(3) authorized

CleanCOALition’s suit to redress these violations. The

district court nevertheless dismissed CleanCOALition’s

claims under Federal Rule of Civil Procedure 12(b)(6),

holding CleanCOA Lition failed to state claims upon which

relief could be granted. The district court also held

CleanCOALition lack standing, essentially because the

court had concluded CleanCOALition could not assert

claims under section 304(a)(1) and 304(a)(3). The district

court finally held it would abstain from exercising

jurisdiction over CleanCOALition’s claims under the

Burford abstention doctrine.

n By way of example, the court in New York v Niagara

Mowhawk Power Corp. held:

Implicit in the requirement that a facility be subject

to [best available control technology] pursuant to

42 U.S.C. § 7475(a)(4) is an obligation on the part of

the person proposing the construction or modification

to obtain the appropriate [best available control

technology] determination. [Defendant’s] argument

conveniently ignores the fact that the permitting

authority never had the opportunity to determine

best available control technology] for the Facilities

precisely because [Defendant] failed to follow the

proper preconstruction procedures

263 F Supp. 2d 650, 663 (WD. N. V. 2003).

The Fifth Circuit, as an issue of first impression,

concluded section 304(a)(1) and 304(a)(3) does not

support CleanCOALition’s claims and affirmed the

district court’s 12(b)(6) dismissal.“? These holdings, as

well as holdings from other courts, not only have

deprived CleanCOALition of viable causes of action, but

also effectively write out of the CAA, provisions critical

to its proper enforcement.

REASONS FOR GRANTING THE PETITION

A. Introduction

Congress enacted the CAA, 42 U.S.C. $§ 7401-7671,

with the objectives “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.” 42 U.S.C. § 7401(b)(1). These objectives are

not mere surplusage or academic principles that can be

ignored when interpreting the CAA. Indeed, under

principles of statutory construction, a court’s “duty .. .

is to find that interpretation which can most fairly be

said to be imbedded in the statute, in the sense of being

most harmonious with its scheme and with the general

purposes that Congress manifested.” Comm ’r of

Internal Revenue v. Engle, 464 U.S. 206, 217 (1984)

(internal quotations omitted).

Protection and enhancement of the Nation’s air

resources depends upon active citizen enforcement of

The Fifth Circuit declined to address the standing issue

or resolve whether Burford abstention is impermissible in CAA

citizen suits. CleanCOALition has standing under Lujan v.

Defenders of Wildlife, 504 U.S. 555, 573 n.7 (1992), and abstention

was improper for reasons discussed herein.

the CAA at a time when such enforcement can make a

material difference. See, e.g., Natural Res. Def Council,

Inc. u Train, 510 F.2d 692, 700 (D.C. Cir. 1974) (“citizens

can be a useful instrument for detecting violations and

bringing them to the attention of the enforcement

agencies and courts alike.”). The window of opportunity

in which citizens meaningful can enforce the CAA is,

however, narrow. See, e.g., Hempstead County Hunting

Club v. Sw. Elec. Power Co., No. 08-CV-4038, 2008 WL

2705570, **2-3 (WD. Ark. 2008) (holding that even before

an entity receives a PSD permit, it is allowed to

undertake “a good deal of activity” towards construction

of a CAA facility).

Congress enacted CAA section 304(a)(1) and

304(a)(3) to allow citizens to stop, inter alia, CAA

violations that become evident before an entity obtains

a PSD permit or begins constructing a CAA facility. The

lower courts in this matter, as well as other courts,

nevertheless have held section 304(a)(1) and 304(a)(3)

does not support such causes of action. See, e.g., Weiler

u. Chatham Forest Prods., Inc., 392 F.3d 532, 538 (2d

Cir. 2004) (“a section 304(a)(1) suit can only be brought

against a private defendant after a facility has been built

and begun operation.”) (emphasis added); Sugarloaf

Citizens Ass'n u Montgomery County, No. 93-2475, 1994

WL 447442, at *8 n.9 (4th Cir. August 17, 1994)

(unpublished) (Until construction is completed

[defendants] can neither begin emissions nor violate any

emissions standard.”) (emphasis added).

These holdings put Congress’s objectives under the

CAA in jeopardy, because they relegate the CAA to a

civil penalties statute that penalizes CAA violators only

after they have committed to courses of action (and

possibly even completed construction of facilities) that

may be contrary to CAA mandates. The holdings in

Weiler and Sugarloaf particularly are indicative of this,

as the Second and Fourth Circuits do not allow private

citizens to enforce the CAA until after a CAA violator

completes a facility or begins operations. 392 Fd at 538;

1994 WL 447442 at *8 n.9.“ Considering the CAA

contains enforcement provisions intended to prevent,

as an initial matter, the construction and operation of

facilities that do not comply with the CAA, see 42 U.S.C.

§ 7604(a), the Weiler/Sugarloaf approach does little to

“to protect and enhance the quality of the Nation’s air

resources. . . 42 U.S.C. § 7401(b)(1).

This case consequently is not me. ely about the lower

courts’ denial of CleanCOALition’s legitimate causes of

action against TXU. The very operation and objectives

of the CAA are jeopardized by these and other courts’

holdings. The matters at issue in this Petition therefore

directly implicate important issues of federal law that

have not been, but should be, resolved by this Court.

See Supreme Court Rule 10(c).

The Fifth Circuit declined to resolve whether it will force

citizens to delay a section 304(a) suit until after a PSD permit is

issued or construction of a facility is commenced. See Appx.

Exhibit A, p. 20a, n.11.

B. Congress Enacted CAA Section 304(a)(1) to Allow

Citizens to Sue to Stop Pre-permit Violations

TXU is violating PSD conditions and requirements

that constitute emissions standards and limitations

under the CAA. Because these violations were evident

before TXU obtained a PSD permit, CleanCOALition

sued TXU under CAA section 304(a)(1), which authorizes

suit “against any person . . who is alleged to have

violated . . . or to be in violation of . . . an emission

standard or limitation under this chapter

42 U.S.C. § 7604(a)(1) (emphasis added)."*

The fundamental dispute in the lower courts was

whether section 304(a)(1) authorizes suit to redress pre-

permit violations or only violations that occur after a

PSD permit has been issued. The plain language of

section 304(a)(1), and structure of the CAA, dictates

section 304(a)(1) authorizes suit for pre-permit

violations. The lower courts in this matter, as well as

other courts, nonetheless have held no such cause of

action exists. These holdings undermine Congress’s

intended operation of the CAA.

„The “under this chapter” reference is to the entirety of

the CAA, which formally is known as Chapter 85 of the Air

Pollution Prevention and Control Act.

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1. Pre-permit violations are actionable under

the plain language of section 304(a)(1) and

the structure of the CAA

The trigger for a section 304(a)(1) cause of action is

the violation of an “emission standard or limitation under

{the CAA].” Congress defined this phrase in CAA section

304(f):

For purposes of this section, the term “emission

standard or limitation under [the CAA]”

means—

(3) any condition or requirement of a permit

under part C of subchapter I of [the CAA]... ;

(4) any other standard, limitation, or schedule

established . . . under any applicable State

implementation plan [SIP]. .. .

42 U.S.C. 8 7604(f).

The conditions and requirements found in part C of

subchapter I of the CAA, as well as the standards and

limitations contained in SIPs, impose mandates on

entities that must be fulfilled before the entities can

obtain a PSD permit. Section 304(f)(3) and 304(f)(4)

therefore authorizes CleanCOALition’s claims against

TXU, and authorizes private citizens as a general matter

to sue to stop CAA violations that occur before a PSD

permit is issued.

" >

—

This construction of section 304 (f) (3) and 304(f)(4)

is supported by the plain language and structure of the

CAA.

a. Pre- permit conditions and requirements

under part C of subchapter I of the

CAA constitute actionable emissions

standards or limitations

CleanCOALition has contended section 304(f)(3)

makes literal sense only if it is read to operate as a

directive that: (1) there are certain conditions and

requirements (which relate to permits), (2) found in part

C of subchapter I of the CAA, and (3) those conditions

and requirements are incorporated as “emission

standard[s] or limitation[s]” within the meaning of

section 304(f)(3). In contrast, TXU has contended

section 304(f)(3) means: (1) when a permit is issued

under part C of subchapter I of the CAA, (2) the permit

will contain certain conditions or requirements, and

(3) only those permit conditions or requirements are

incorporated as “emission standard([s] or limitation[s]”

under section 304(f)(3). The critical questions that arise

from these competing constructions is whether the

phrase “condition or requirement” refers to permit

conditions or requirements found under part C of

subchapter I or whether it refers to only conditions or

requirements in permits isswed under part C of

subchapter I.

CleanCOALition’s construction is correct, because

section 304(f)(3) contemplates citizen suits before a PSD

permit is issued, because the conditions and

requirements under part C of subchapter I include

conditions and requirements to obtain a PSD permit.

See generally 42 U.S.C. § 7475(a)(3),(4), & (6) (creating

the “cause, or contribute” “best available control

technology,” and “air quality impacts” pre-permit

conditions and requirements); see also supra pp. 7-8

(discussing the time for persons to comply with the

relevant PSD conditions and requirements).

Courts, including the lower courts in this matter,

nonetheless construe section 304(f)(3) to allow suit only

after a PSD permit has been issued. See, e.g., Appx. Exhibit

A, pp. 14a-15a (“the phrase ‘of a permit’ [does] nothing

more than broadenſ] the definition of ‘emission standard

or limitation’ to include those conditions and requirements

found in any permit issued pursuant to...” part C of

subchapter I of the CAA.) (emphasis added). Cf Weiler,

392 Fd at 538; Sugarloaf, 1994 WL 447442 at *8 n.9. This

construction is incorrect, because it violates rules of

grammar and otherwise cannot be reconciled with the

structure of the CAA.

ii Rules of grammar support

Clean COALition's construction of

CAA section 304 (f) (3)

The language in section 304(f)(3) is susceptible to

only one literal, and logical, interpretation under rules

of grammar. As a starting point, it is necessary to

consider the technical structure of the !anguage in

section 304(f)(3), which can be diagramed as follows: any

condition or requirement / of a permit / under part

C / of subchapter I / of the CAA. The first portion of this

language, i.e., “any condition or requirement,”

represents the subject of section 304(f)(3), which is

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followed by four consecutive prepositional phrases:

(1) “of a permit,” (2) “under part C,” (3) “of subchapter

I,” (4) “of [the CAA.

To construe section 304(f)(3) properly, it is necessary

to identify the prepositions and corresponding

prepositional “objects” that constitute the prepositional

phrases in the section. The first prepositional phrase

includes the preposition “of” followed by the object of

that preposition, “a permit.” The second phrase includes

the preposition “under” followed by the object of that

preposition, “part C.” The third phrase includes the

preposition “of” followed by the object of that

preposition, “subchapter I,” and the fourth phrase

includes the preposition “of” followed by the object of

that preposition, “[the CAA].”

The meaning of section 304(f)(3) depends upon what

these prepositional phrases are intended to “modify” in

the language of the section. Rules of grammar allow two

possibilities: “When two or more prepositional phrases

follow each other, they may modify the [subject of a

sentence], or one phrase may modify the object in the

preceding phrase.” See Grammar Handbook:

Prepositional Phrases, University of Illinois at Urbana-

Champaign, the Writers Workshop, the Center for

This successive use of prepositional phrases likely has

contributed to courts’ incorrect construction of section 304(f)(3):

“Two prepositional phrases in a row turn on the warning light,

three make a problem, and four invite disaster.” See Bryan A.

GARNER ET AL., The Redbook: A Manual on Legal Style 177

(Thompson/West 2d ed. 2006) (quoting the expert on prose

Richard A. Lanham). Close study therefore is necessary (see

below) to ascertain the proper meaning of section 304(f)(3).

Writing Studies, http://www.english.uiuc.edu/cws/

wworkshop/writer_resources/grammar_handbook/

prepositional phrases. atm. The issue therefore is

whether the four, successive prepositional phrases in

section 304(f)(3) modify the subject of section 304(f)(3),

i. e., any condition or requirement,” or whether the

phrases modify the respective objects in preceding

prepositional phrases. There are examples of both in

section 304(f)(3).

Considering the prepositional phrases in reverse

order, the fourth and third prepositional phrases modify

the objects in the preceding prepositional phrases. For

instance, the fourth prepositional phrase, “of the [CAA],”

modifies the preceding object, “subchapter I,” and the

third prepositional phrase, “of subchapter I,” modifies

the preceding object, “part C.”

By contrast, a logical reading of section 304(f)(3)

dictates that the second and first prepositional phrases

both modify the subject “any condition or requirement.”

For instance, (again considering the prepositional

phrases in reverse order) the second prepositional

phrase, “under part C,” modifies the subject, “condition

or requirement,” and the first prepositional phrase, “of

a permit,” also modifies the subject, “condition or

requirement.”

This is the only logical construction of the first and

second prepositional phrases, because the alternative

construction (which TXU and courts implicitly have

advanced) is that the second prepositional phrase,

“under part C,” modifies the object in the first

prepositional phrase, “a permit.” Under this

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construction, section 304(f)(3) would be read as if its

emphasis is on: “a permit under part C.” To the contrary,

the section is logical only if it is read with emphasis on

“any condition or requirement... under part C“ (albeit,

a condition or egress that must relate to a

permit).'®

The inescapable flaw with the construction of section

304(f)(3) that emphasizes, “a permit under part C,” is

that there is no literal way for “a permit” to be “under

part C.“ Cf Flora u United States, 357 U.S. 63, 65 (1958)

(“In matters of statutory construction the duty of this

Court is to give effect to the intent of Congress, and in

doing so our first reference is of course to the literal

meaning of words employed.”) (emphasis added). By

way of illustration, the phrase “a permit” reflects a noun

form that refers to a tangible thing. When a tangible

thing is discussed in reference to being “under”

something, logic should dictate that the tangible thing

physically is located in the position of “under.” For

instance, a shoe (i.e. a tangible thing) physically can be

located “under” a table. It would be a non sequitur,

however, to conclude a shoe could be located “under”

some abstract concept. It likewise would be illogical to

conclude “a permit” somehow could be “under” the

abstract concept of a “part C.” It simply strains logic to

‘6 This construction does not read “of a permit” out of the

section. It treats this prepositional phrase as a qualifier

intended to convey that part C of subchapter I of the CAA

contains conditions and requirements of several variations. See,

e. g., 42 U.S.C. § 7471 (enumerating “requirements” under part

C of subchapter I related to a state’s SIP). However, only the

conditions and requirements in part C of subchapter I related

to permits are incorporated under section 304(f)(3).

conclude a tangible thing can have a proximity of being

under something that only exists as an abstract concept.

The temptation may be to remedy this logical

aberration by reading section 304(f)(3) as if it means “a

permit isswed under part C”; however, this would be

improper, because Congress did not include the term

“issued” in section 304(f)(3). Cf 62 Cases, More or Less,

Each Containing Six Jars of Jam u United States, 340

U.S. 593, 596 (1951) (“But our problem is to construe

what Congress has written. After all, Congress

expresses its purpose by words. It is for us to ascertain-

neither to add nor to subtract, neither to delete nor to

distort.”) (emphasis added).

Indeed, in a separate provision of CAA section 304,

Congress used the phrase “permit required under part

C of subchapter I” when it intended to convey that the

relationship between the permit and part C is that the

permit is issued under part C. See 42 U.S.C.

§ 7604(a)(3) (emphasis added). Congress used no such

language in section 304(f)(3). Accordingly, it is improper

to imply this meaning in the section. See Allison Engine

Co., Inc. v. United States, 128 S. Ct. 2123, 2130 (2008)

(“[WJhen Congress includes particular language in one

section of a statute but omits it in another section of

the same Act, it is generally presumed that Congress

acts intentionally and purposely in the disparate

inclusion or exclusion.”) (internal quotations omitted).

By contrast, in section 304(f)(3), the term “condition”

and the term “requirement” both reflect noun forms

that refer to conceptual, as opposed to tangible, things.

There consequently is no strain on reason, nor need to

wert €*

insert terms, when stating these conceptual things can exist

“under” another conceptual thing; here, part C“ of the

CAA. It consequently was logical for Congress to refer to

a “condition or requirement” “under part C,” but it would

not have been logical for Congress to have referred to a

“permit” as being “under part C.”

CAA section 304(f)(3) consequently should be

interpreted as a directive for parties to consult the permit

conditions and requirements found under part C of

subchapter I to determine which conditions and

requirements are emissions standards or limitations within

the meaning of section 304(f)(3). This construction is logical,

and it relies solely on the literal meaning of the words used

in section 304(f)(3). By contrast, TXU and the courts’

interpretation of section 304(f)(3) requires insertion of the

term “issued” for the section to make literal sense.

7 The Fifth Circuit suggested its construction of section

304(a)(1) and 304(f)(3) was supported by the CAA’s legislative

history. See Appx. Exhibit A, p. 15a, n.6 (quoting H. Conf. Rep. No.

564, at 173 (1977), as reprinted in 1977 U.S.C.C.A.N. 1502, 1554).

Although the Fifth Circuit initially seemed to acknowledge the

legislative history relates to language found in CAA section

So), 42 U.S.C. § 7604(a)(3), it nonetheless referenced the

history as part of its analysis of CleanCOALition’s section 304(a)(1)

claim. This was incorrect, because section 304(a)(3) authorizes suit

“against any person . . . who is alleged to have violated . . . or to be

in violation of any condition of [a] permit” “required under part C

of subchapter I of [the CAA] (relating to significant deterioration

of air quality) or part D of subchapter I of [the CAA] (relating to

nonattainment) ....” 42 U.S.C. § 7604(a)(3) (emphasis added). The

relevant legislative history relates to this language in section

304(a)(3), because the enforcement of “part C“ and “part D”

permits referenced in section 304(a)(3) is a direct reference to the

“significant deterioration [and] non-attainment permit{s]”

expressly referenced in the legislative history.

Contextual cues in the structure of the CAA further

support CleanCOALition’s construction of section

304(f)(3).

ii. The structure of the CAA supports

CleanCOALition’s construction of

CAA section 304(f)(3)

The structure of the CAA counsels against

construing section 304(f)(3) to create a cause of action

only for violation of conditions or requirements in issued

PSD permits. Cf Jones v. United States, 527 U.S. 373,

389 (1999) (“Statutory language must be read in context

and a phrase gathers meaning from the words around

it.”) (internal quotations omitted). In CAA section

304(f)(4), and again under CAA section 304(a)(3),

Congress created two independent causes of action for

violations of conditions and requirements found in CAA

permits. There consequently is no reason to conclude

Congress intended section 304(f)(3) to be construed in

a manner that conflicts with rules of grammar and logical,

only to provide a third statutory basis for causes of action

Congress otherwise had created.

Inde. d, such a construction would make the causes

of action in section 304(f)(4) and 304(a)(3) mere

surplusage. Cf Duncan u. Walker, 533 U.S. 167, 174

(2001) (“It is our duty to give effect, if possible, to every

clause and word of a statute. ... We are thus reluctan{[t]

to treat statutory terms as surplusage in any setting.”)

(internal citations and quotations omitted). By way of

illustration, in CAA section 304(f)(4), Congress created

a cause of action to redress permit violations, by defining

an actionable violation to include violation of “any permit

;

—— |

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— *

term or condition. . . 42 U.S.C. § 7604(f)(4) (emphasis

added). Under CAA section 304(a) (3), Congress created

another cause of action to redress permit violations by

authorizing suit “against any person . . . who is alleged

to have violated . . . or to be in violation of any condition

of [a] permit” “required under part C of subchapter I of

[the CAA]....” 42 U.S.C. § 7604(a)(3) (emphasis added).

Section 304(a)(3) particularly is significant given

Congress expressly created a cause action against

persons who violate conditions of a PSD permit required

under part C of subchapter I of the CAA. There is no

foreseeable basis why Congress would have done this

through section 304(a)(3), if Congress also contemplated

section 304(f)(3) would be construed (necessitating

strained logic and improper grammar) to create an

identical cause of action.

Section 304(f)(3) consequently should not be

construed to create a cause of action only for violations

that occur after a PSD permit has been issued. As

CleanCOALition has contended, the literal, and logical,

construction of the section is that it creates a cause of

action when the conditions or requirements under part

C of subchapter I (related to permits) are violated, and

such violations can occur before a person obtains a PSD

permit. See supra pp. 7-8.'*

’ CAA section 165(a)(2), 42 U.S.C. § 7475(a)(2), provides

another contextual cue that Congress wanted pre-permit

conditions and requirements to be enforceable, because the

actual heading of the section is “Preconstruction requirements.”

(emphasis added). The substance of the section makes clear

the “requirements” arise during the pre-permit stage, because:

(Cont’d)

The lower courts in this matter, and courts from

other circuits, therefore have misconstrued CAA section

304(f)(3), nullifying private citizens’ ability to bring

section 304(a)(1) claims. This undermines the objectives

and effective enforcement of the CAA, because an entity

can proceed with the permitting and construction

process, see supra pp. 9-11, even when it is clear the

entity is violating the CAA. Under Weiler and Sugarloaf,

the entity even can complete the facility and begin

operations. At that stage, the PSD mandates governing

how power plants must be constructed, at best could

serve as bases for civil penalties, but forever lost is the

opportunity actually to enforce PSD mandates as

Congress intended.

5. The standards and limitations in Texas’s

SIP constitute actionable emissions

standards or limitations

CAA section 304(f)(4) also is a basis for a cause of

action to redress pre-permit violations. The section

defines “emission standard or limitation under [the

CAA] to include: “any other standard, limitation, or

schedule established . . under any applicable State

implementation plan [SIP]... . 42 U.S.C. § 7604(f)(4).

(Cont’d)

No major emitting facility .. may be constructed . .. unless. the

proposed permit has been subject to a review in accordance with

...” section 165(a)(2). (emphasis added). Because a PSD permit

applicant has the duty to present the information and

environmental analyses mandated by 165(a)(2), the required

“review” cannot occur if the applicant fails to fulfill these

obligations. See Niagara Mowhawk Power Corp, 263 F. Supp. 2d

at 663.

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» 2 5

Texas’s SIP incorporates pre- permit standards and

limitations that are equivalent to the:

1. “cause and contribute,”

2. “best available control technology“ and

3. “air quality impacts” requirements.

Indeed, the SIP specifies that ſiln order to be

granted a permit to construct, the owner or operator of

the proposed facility shall submit information .. which

will demonstrate. . . the foregoing pre-permit

standards and limitations.” TXU has not satisfied these

requirements, because it never has undertaken the

environmental and technical analyses that correspond

with the requirements. TXU consequently is violating

pre-permit standards and limitations in the Texas SIP

and these violations are actionable under section

304(a)(1). The lower courts in this matter, as well as other

courts, nevertheless have concluded section 304(a)(1)

cannot support a citizen suit based on violations of pre-

permit standards and limitations in a SIP See, e.g.,

Appx. Exhibit A, p. 19a. This too undermines the

1 See generally 40 C. FR. § 51.166(k); 1976 Texas State

Implementation Plan § XIV (Rules & Regulations) at Rule

603.13, found at http://www.tceg. state. tæ. us / assets / public /

implementation/ air /sip/sipdocs/1976-81P/1976 sip section

xiv. pdf.

20 See generally id. at Rule 603.16.

21 See generally id. at Rule 603.12.

2 See generally id. at Rule 603.1 (emphasis added).

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objectives and effective enforcement of the CAA,

because it allows a CAA violator to proceed with the

permitting, construction, and even completion of aCAA

facility even when it is clear it is violating the CAA.

2. The matters at issue in this lawsuit can be

resolved and the public interest will be served

if the Court resolves the proper operation of

CAA section 304(a)(1)

Courts essentially have construed the provisions of

sections 304(a)(1) and 304(f) based on a lay interpretation

of “emission standard” and “emission limitation.”

For instance, the courts have concluded a standard or

limitation cannot be violated before a CAA facility is

completed and operational. See Weiler, 392 F.3d at 538;

Sugarloaf, 1994 WL 447442 at *8 n.9. This overly narrow

construction of “emission standard or limitation”

ignores the express language of CAA section 304(f),

which defines the phrase to include a broad range of

activities that occur, or obligations that arise, before a

PSD permit has been issued and before a CAA facility

is constructed, becomes operational, or begins emitting

pollutants. For instance, the “best available control

technology” analysis, and ultimate determination, must

be preformed pre-permit and by definition is an

“emission limitation.” See 42 U.S.C. § 7479(3).

Courts, including the lower courts in this matter,

nevertheless have struggled with the prospect of pre-

permit violations, because the courts were troubled that

violations could arise based on information, or lack

thereof, in an application to obtain a PSD permit.

See, e.g., Appx. Exhibit A, p. 19a.” This, however, is the

nature of the CAA permitting process, because persons

are obligated to undertake certain CAA conditions and

requirements before they seek (by way of application) a

PSD permit. See supra pp. 7-8; 263 F Supp. 2d at 663.

For instance, the Fifth Circuit held Niagara Mohawk and

related cases stand for the proposition that actionable violations

of PSD requirements do not occur until a facility is constructed.

See Appx. Exhibit A, p. 20a. The Fifth Circuit misperceives the

holdings from Niagara Mohawk and the related cases. The courts

in the respective cases did not resolve whether or when a CAA

citizen suit can be brought based on pre-permit violations.

The courts consequently did not suggest claims such as

CleanCOALition’s are impermissible. They instead were

attempting to resolve whether violations of PSD requirements

could be treated as continuing violations that toll a five-year statute

of limitations for citizen suits. In this narrow context, they held a

violation of the PSD obligations will not operate as an actionable

CAA violation in perpetuity, but instead “accrues” when a CAA

facility is constructed. The courts therefore concluded the statute

of limitations was not tolled, and suit must be initiated within five

years from the date of construction. This holding offers no insight

into the matters presently at issue.

* A similar citizen suit provision under subchapter V of the

CAA (which governs “operating” permits) also authorizes a suit

to challenge a “proposed” permit. See 42 U.S.C. § 7661d(b)(2)

(authorizing private citizens to petition the EPA Administrator to

object to operating permits, even if not yet issued, and allowing

citizens to file a citizen suit if the Administrator fails to object to a

proposed permit). Congress therefore displayed no reservations

about authorizing citizens to sue to remedy CAA violations that

occur before a permit (PSD or operating) is issued. But see Freeman

u Cincinnati Gas & Elec. Co, No. 1:05CV179, 2005 WL 2837466, at

*2 (S.D. Ohio Oct. 27, 2005) (construed to mean no cause of action

exists to challenge a proposed operating permit, although the

express language of 42 U.S.C. § 7661d(b)(2) authorizes just such

a cause of action).

. oil

In any event, CAA section 304(b)(1)(A) requires a

potential CAA plaintiff to provide sixty-days notice of

CAA violations before filing a citizen suit. See 42 U.S.C.

§ 7604(b)(1)(A). CleanCOALition did so here, and the

sixty days expired without TXU curing its CAA

violations. CleanCOALition consequently was authorized

to move forward with its suit not merely because TXU’s

PSD permit application was defective, but because TX U

disregarded CleanCOALition’s notice and did not cure

its violations of the relevant PSD obligations.

Accordingly, the nexus between the structural and

practical operation of the CAA supports section

304(a)(1) claims based on pre-permit violations. Proper

regard for the operation of section 304(a)(1) therefore

dictates a person states a claim if he alleges violations

of pre-permit conditions or requirements under part C

of subchapter I or pre-permit standards or limitations

in a SIP Here, regardless of the ultimate outcome,

CleanCOALition consequently has stated a legitimate

cause of action against TXU.

Nonetheless, under current precedents, no such

cause of action exists, even when it is clear a person has

engaged in CAA violations at the pre-permit stage. This

construction of section 304(a)(1) undermines effective

enforcement of the CAA and jeopardizes Congress’s

objectives under the Act. CleanCOALition therefore

respectfully requests that the Court grant this Petition

for Writ of Certiorari to resolve the proper operation of

CAA section 304(a)(1).

3 2

C. The Matters in this Lawsuit Can Be Resolved and

the Public Interest Will Be Served if the Court

Resolves whether CAA Section 304(a) (3) Operates

to Prevent Construction of Plants Based on

Defective PSD Permits

CAA section 304(a)(3) authorizes suit “against any

person who proposes to construct or constructs...

[a CAA] facility without a permit required under part C

of subchapter I of [the CAA]... .” 42 U.S.C. § 7604(a)(3).

CleanCOALition sued TXU under CAA section 304(a)(3),

because TXU “proposes to construct” its power plant

based on a defective PSD permit.

A fair reading of section 304(a)(3) is that it authorizes

such suits. TXU nonetheless has contended section

304(a)(3) provides a cause of action only when an entity

intends to construct a facility with no permit at all.”

The lower courts, as well as other courts, have adopted

this construction. See, e.g., Appx. Exhibit A, pp. 22a-

23a.

No legitimate interest wou'd be served, indeed it

would be counter-productive to the objectives of the

CAA, if entities could propose to construct CAA facilities

simply because they seek a PSD permit, no matter that

the permit will be defective. Had Congress intended this,

it would not have conditioned a section 304(a)(3) cause

of action on the language: “permit required under part

C of subchapter I... . See 42 U.S.C. § 7604(a)(3). As

discussed above, part C of subchapter I imposes

conditions and requirements, on applicants, that are

* ROA, p. 74; Hearing Transcript, pp. 4, 15, 17.

prerequisites to issuance of valid permits. Accordingly,

a permit-never can be “a permit required under part C

of subchapter I” if an applicant has not satisfied the pre-

permit conditions and requirements mandated therein.

The CAAs legislative history appears to provide some

support for this proposition.

Section 304(2)(3) was added to the CAA in 1977. The

Senate summarized the new cause of action by

explaining: “Section 304 of the Clean Air Act is amended

to allow a citizen to bring suit to prevent construction

of a major emitting facility without a permit in

compliance with ...CAA S 165{]....” H. Conf. Rep.

No. 564, at 173 (1977), as reprinted in 1977 U.S.C.C.A.N.

1502, 1553 (emphasis added).

The plain language of section 304(a)(3), and related

legislative history, therefore reflects Congress did not

intend section 304(a)(3) to embrace only claims against

entities that propose to construct a facility without any

PSD permit. Section 304(a)(3) instead is a basis for

claims against entities that propose to construct a CAA

facility without a permit that actually complies with the

CAA.

This is precisely the section 304(a)(3) cause of action

CleanCOALition pleaded against TXU, because TXU

never has completed the PSD prerequisites found

under, inter alia, CAA section 165(a)(3),(4), & (6),

This clarifying language was not included in a subsequent

House Conference Report, though the legislative record does

not contain an explanation for the exclusion.

e e oe e e . Pee ee ̃ Üꝛ eee PEP eS . eer ee .. et ee

42 U.S.C. § 7475(a)(3),(4), & (6). TXU’s PSD permit

consequently is inherently defective and cannot be

characterized as “a permit required under part C of

subchapter I [of the CAA].”

Courts that have held no cause of action exists under

these circumstances are usurping a critical CAA

enforcement mechanism, because under the current

state of the law, a person can propose and even begin

preliminary construction of a CAA facility, see 2008 WL

2705570 at **2-3, even when the person seeks a PSD

permit that will not comply with part C of subchapter I.

This effectively denies citizens the ability to seek

enforcement of the CAA at a time when enforcement

actually could “protect and enhance the quality of the

Nation’s air resources... .” 42 U.S.C. § 7401(b)(1).

CleanCOALition therefore respectfully requests that

the Court grant this Petition for Writ of Certiorari to

resolve the proper operation of CAA section 304(a)(3).

D. The Matters in this Lawsuit Can Be Resolved and

the Public Interest Will Be Served if the Court

Resolves whether the Burford Abstention

Doctrine Is Inapplicable to CAA Citizen Suits

Congress authorized private citizens to sue in

federal court to remedy CAA violations. 42 U.S.C.

§ 7604(a) (“district courts shall have jurisdiction ....”

over CAA suits) (emphasis added). Application of

Burford abstention to CAA citizen suits therefore

subverts the central purpose of CAA section 304(a), i. e.,

creation of a federal cause of action to redress CAA

violations.

“4

There nonetheless is considerable discord between

courts regarding whether Burford abstention is a valid

basis for forgoing jurisdiction over CAA citizen suits.

Whereas some courts have concluded abstention cannot

be reconciled with the federal right of action granted in

the CAA and similar statutes,” other courts (including

the district court in this matter) have concluded

abstention is appropriate.“ Neither the history of the

Burford abstention doctrine, nor the language or

structure of the CAA permits abstention in CAA citizen

suits.

1. Historical basis for the Burford abstention

doctrine

The Burford abstention doctrine arose in Burford

v. Sun Oil Co., 319 U.S. 315 (1943). There, a plaintiff

sued in federal court claiming the Texas Railroad

Commission (the “Commission”) violated the Fourteenth

Amendment by granting a disputed drilling permit.

Id. at 317. Texas had a centralized system for judicial

27 See, e.g., Or. State Pub. Interest Research Group v. Pac.

Coast Seafood Ca, 341 F Supp. 2d 1170, 1177-78 (D. Or. 2004);

L.E.A.D. v. Exide Corp., No. Civ. 96-3030, 1999 WL 124473, *22

(E. D. Pa. February 19, 1999); Culbertson u Coats Am., Inc., 913

F. Supp. 1572, 1578 (N.D. Ga. 1995); Student Pub. Interest

Research Group of New Jersey, Inc. v. PD. Oil & Chem. Storage,

Inc., 627 F. Supp. 1074, 1085 (D.N.J. 1986); Brewer u. City of

Bristol, 577 F. Supp. 519, 524 (E.D. Tenn. 1983) (rejecting

abstention doctrines for Clean Water Act and CAA citizen suits).

28 See Appx. Exhibit B, p. 51a; Ellis u Gallatin Steel Co, 390

F.3d 461, 480 (6th Cir. 2004) (applying Burford in CAA citizen

suit).

4 4 ~~ wig g bles. > Wenne — 2 . 1 * 12 4 1 aa “wt *

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review of Commission orders, which allowed the state

judiciary to develop extensive expertise on the relevant

subject matter. 319 U.S. at 327. This Court consequently

concluded efficiencies justified relinquishment of

jurisdiction to the comparatively sophisticated Texas

state courts. Jd. at 334.

The Burford plaintiff’s claim was not premised,

however, on an express grant of congressional authority

to sue in federal court. This differs materially from

claims under CAA section 304(a), which are in fact

premised on an express grant of authority to proceed

in federal court. The narrow factual and procedural

context of Burford v. Sun Oil Co. is critical to a

understanding of the proper scope of the Burford

abstention doctrine.

2. Burford abstention should not be extended to

CAA citizen suits

The generic applicability of the Burford abstention

doctrine cannot justify disregarding Congress’s

mandate that federal courts are the proper forum for

section 304(a) citizen suits, because courts “are not at

liberty to create an exception where Congress has

declined to do so.” Freytag v. Comm’r of Internal

Revenue, 501 U.S. 868, 874 (1991) (internal quotations

omitted). Moreover, (when a statute limits a thing to

be done in a particular mode, it includes a negative of

any other mode.” Christensen v. Harris County, 529 U.S.

576, 583 (2000).

The CAA consequently should be construed from

the perspective that if Congress wanted state courts or

agencies to have exclusive, or even concurrent,

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jurisdiction over CAA citizen suits, Congress would have

said so.” Likewise, if Congress wanted federal courts to

abstain from exercising jurisdiction over citizen suits

otherwise vested with the courts, Congress again would

have said so. It did neither.

Indeed, Congress articulated none of the

considerations underlying Burford abstention as

limitations on private citizens’ right to bring CAA citizen

suits in federal court. By contrast, in other CAA

provisions, Congress clearly signaled its awareness of

the states’ role in implementing other aspects of the

CAA and expressly articulated those circumstances

under which it wanted state involvement.

For instance, Congress expressly articulated the

requirement that a private citizen must provide sixty-

days notice to a CAA violator before suit, as well as pre-

suit notice to the EPA and states in which violations

occur. See 42 U.S.C. § 7604(b)(1); see also 40 C. FR.

§ 54.2. The purpose of this pre-suit notice provision is

to afford the EPA or states an opportunity to intervene

to enforce the CAA before private citizens sue to enforce

the Act.

The language and contextual cues in the CAA (discussed

herein) justify application of the exceptions to the principle

that courts generally “begin, in every case, with the presumption

that state courts enjoy concurrent jurisdiction over [federal]

claims. es Only an explicit statutory directive, [an]

unmistakable implication from legislative history, or . . . a clear

incompatibility between state-court jurisdiction and federal

interests will rebut the presumption.” Hathorn v. Lovorn, 457

U.S. 255, 266 (1982) (internal citations and quotations omitted).

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Also, in 42 U.S.C. § 7410(a), Congress expressly

directed each state to establish a SIP governing certain

administrative components of the CAA. Congress did

not designate, however, state courts as the judicial

forums for citizen suits.

The judiciary consequently should not interject, by

fiat, abstention principles to accomplish a result

Congress did not intend. This would rewrite the well-

crafted provisions of the CAA, and contravene private

citizens’ congressionally granted right to bring citizen

suits, in federal court, to redress CAA violations.

3. Federal courts have exclusive jurisdiction

over CAA citizen suits

In any event, Congress intended federal courts to

have exclusive jurisdiction over CAA suits. When the

provisions of the CAA are read in context, this is the

only logical construction of section 304(a).

a. In the CAA, Congress used the phrase

“district courts” regarding only federal

courts

In the CAA’s judicial enforcement provisions,

Congress used some variation of the phrase “district

court” in contexts that mean only federal district courts.

For instance, in CAA section 113(b), 42 U.S.C. § 7413(b),

Congress authorized the EPA Administrator to bring a

civil suit against any person violating CAA requirements

incorporated into SIPs. Congress specified any “action

under this subsection may be brought in the district

court of the United States. . . 42 U.S.C. § 7413(b)

(emphasis added).

In CAA section 204(a), 42 U.S.C. § 7523(a),

Congress authorized the federal government to bring a

civil action to enjoin violations of vehicle emissions

requirements. Congress again specified that the

“district courts of the United States shall have

jurisdiction ....” 42 U.S.C. § 7523(a) (emphasis added).

See also 42 U.S.C. § 7524(b); 42 U.S.C. § 7603. In CAA

section 304(a), Congress created the federal citizen suits

and used the truncated phrase “district courts” to

specify the federal district courts “shall have

jurisdiction” over such suits.

There is no reason to assume Congress intended

the phrase “district courts” to have different meanings

in the various provisions of the CAA. The

“interrelationship and close proximity of these provisions

... presents a classic case for application of the normal

rule of construction that identical words used in

different parts of the same act are intended to have the

same meaning.” Comm u Lundy, 516 U.S. 235, 250

(1996) (internal quotations omitted).

Otherwise, Congress would have used the phrase

“district courts” in section 304(a) in a manner contrary

to how Congress used “district courts” in the other

judicial enforcement provisions. The logical construction

is that Congress intended the phrase “district court(s)”

to have a consistent meaning throughout the CAA, i.e.,

federal district courts. Additional contextual language

in the CAA compels this conclusion.

5. Contextual language necessitates

construction of “district courts” to mean

federal district courts

If “district courts” in section 304(a) is not construed

to mean (only) federal district courts, the section would

be illogical, because not all states have judicial tribunals

referred to as “district courts.” Arizona, California,

Connecticut, Delaware, and Indiana have “superior”

courts.* Georgia, Illinois, Michigan, Mississippi,

Missouri, Oregon, South Carolina, South Dakota,

Tennessee, West Virginia, and Wisconsin have “circuit”

courts. Louisiana has “Parish” courts. New York has

“Supreme Courts.” Ohio has the “court of common

pleas,” and Pennsylvania has “commonwealth” courts.

It would be illogical to construe section 304(a) in a

manner that ignores almost half the states do not have

anything called “district courts” to correspond with the

express language of section 304(a). Interpretations “of

a statute which would produce absurd results are to be

avoided if alternative interpretations consistent with the

legislative purpose are available.” Griffin v. Oceanic

Contractors, Inc., 458 U.S. 564, 575 (1982). Here,

absurdity is avoided, and the express legislative purpose

served, if “district courts” is construed to mean federal

district courts, because the trial courts in the federal

system are known as “district courts.”

% The District of Columbia also has “superior courts.”

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Indeed, Congress demonstrated its ability to invoke

references to state judicial systems when, in fact, that was

Congress’s intent. In CAA section 502(b)(6),

42 U.S.C. § 7661a(b)(6), Congress directed the EPA

Administrator to develop regulations requiring each state

to develop an “operating permit” program (which is

distinct from the PSD permit program), that included:

“Adequate, streamlined, and reasonable procedures for

... expeditious review of permit actions... and including

an opportunity for judicial review in State court of the

final permit action . .” (emphasis added). The EPA

Administrator therefore promulgated 40 C. F. R.

§ 70.4(b)(3){x). Congress could have, but did not, make

any similar provision for state court review of violations

related to PSD construction permits. Courts, consequently,

should not read this into the CAA.

In CAA section 304(b)(1)(B), Congress indicated a

section 304(a)(1) citizen suit is preempted if the United

States or state government first initiates a CAA

enforcement action. To specify these government actions

could be brought in federal or state court, Congress did

not use the phrase “district courts.” Congress instead used

language that actually articulates the right to proceed in

either judicial system: “No action may be commenced .. .

if the Administrator or State has commenced and is

diligently prosecuting a civil action in a court of the United

States ora State... .” 42 U.S.C. § 7604(b)(1)(B) (emphasis

added).

Other statutory enactments illustrate Congress

appreciates the distinction between federal and state courts

and knows how to articulate the distinction effectively. A citizen

suit provision in the Federal Fair Housing Act provides: “An

aggrieved person may commence a civil action in an appropriate

United States district court or State court... 42 U.S.C.

§ 3613(a)(1)(A) (emphasis added).

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Similarly, in CAA section 304(e), Congress clarified

that nothing about Congress’s creation of federal rights

and remedies in the citizen suit provisions prohibited

state governments from bringing suit in state court,

under state law, to redress air pollution:

Nothing in this section or in any other law of

the United States shall be construed to

prohibit, exclude, or restrict any State, local,

or interstate authority from—

[ bringing any enforcement action or

obtaining any judicial remedy or sanction in

any State or local court under State or

local law respecting control and abatement

of air pollution.

42 U.S.C. § 7604(e) (emphasis added).

The foregoing provisions demonstrate Congress:

(1) appreciated the difference between the state and

federal systems; (2) knew how to refer to the separate

state system when Congress, in fact, intended to do so;

and (3) appreciated that after creating an exclusively

federal regime for private citizen suits, it was necessary

to clarify the limited circumstances when litigation was

appropriate in state courts.

The CAA provides one additional, though

significant, contextual indication that Congress intended

citizen suits to be litigated in federal courts. In section

304(d), Congress enacted a provision that governs the

procedure courts must follow when imposing bond or

security requirements as conditions of injunctive relief

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under the CAA. This provision specifies a court must

follow the Federal Rules of Civil Procedure. See 42 U.S.C.

§ 7604(d).

It would be oad, and apparently a first, for Congress

to mandate use of the Federal Rules of Civil Procedure,

if Congress envisioned state court jurisdiction over

citizen suits. Simply put, Congress would be forcing

state courts to use federal procedure. This oddity is

avoided if section 304 is construed from the perspective

that Congress intended exclusive federal jurisdiction

over CAA citizen suits.

A contextual reading of section 304 therefore

compels the conclusion federal courts have exclusive

jurisdiction over citizen suits. Courts, including the

district court in this matter, that have held Burford

abstention is permissible in a CAA citizen suit therefore

undermine Congress’s intended operation of the CAA.

CleanCOALition therefore respectfully requests that

the Court grant this Petition for Writ of Certiorari to

resolve whether Burford abstention is in fact

inappropriate in CAA citizen suits.

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CONCLUSION 2

The lower courts in this matter, as well as courts

from other eireuits, have subverted essential

enforcement provisions in the CAA, thereby

undermining Congress’s objectives in the Act.

Congress’s express creation of a federal mechanism for

judicial enforcement of the CAA further has been

undermined by application of the Burford abstention

doctrine. Petitioners CleanCOALition and Robertson

County: Our Land, Our Lives consequently have had

their rights under the CAA abrogated, and Congress’s

intended operation of the CAA has been put in jeopardy

as a general matter. Petitioners therefore respectfully

request that the Court grant this Petition for Writ of

Certiorari.

Respectfully submitted,

FREDERICK W. Appison, III

Counsel of Record

NoLW C. KNIGHT

Munscu HARD Kop & Harr, PC.

3800 Lincoln Plaza

500 North Akard

Dallas, Texas 75201

(214) 855-7500

Counsel for Petitioners

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.