# Appendix — CleanCOALition v. TXU Power (No. 08-533)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2009

## Text

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APPENDIX A — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
FILED JULY 21, 2008

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 07-50685

CLEANCOALITION; ROBERTSON COUNTY:
OUR LAND OUR LIVES

Plaintiffs-Appellants

V.

TXU POWER, doing business as
TXU GENERATION COMPANY LP;
OAK GROVE MANAGEMENT COMPANY LLC;
TXU CORPORATION

Defendants-Appellees

Appeal from the United States Distriet Court
for the Western Distriet of Texas

Before REAVLEY, SMITH, and DENNIS, Circuit
Judges.

DENNIS, Circuit Judge:

This case of first impression involves the scope of
citizen-suit jurisdiction under the Clean Air Act (“CAA”).
See 42 U.S.C. § 7604(a). Plaintiffs-Appellants filed suit
to enjoin Defendants-Appellees from constructing a

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pulverized coal-fired power plant in their community,
alleging various violations of the CAA preconstruction
permit process. The district court dismissed this case
on the ground that, inter alia, neither of the asserted
bases for subject matter jurisdiction, §§ 7604(a)(1) and
7604(a)(3), provides for jurisdiction in this case. For the
reasons stated herein, we agree and, therefore, affirm
the judgment of the district court.

I. BACKGROUND FACTS

CleanCOA Lition and Robertson County: Our Land,
Our Lives (collectively “Appellants”) are environmental
interest groups whose members are concerned with
environmental health issues, including air quality. TXU
Power, Oak Grove Management LLC, and TXU
Corporation (collectively “TX U”) are utility entities that
have proposed the construction of a pulverized coal-fired
power plant in Robertson County, Texas. Members of
Appellants reside in Robertson County and allege they
will be adversely affected by emissions from the plant.

On July 27, 2005, TXU applied for a preconstruction
permit with the Texas Commission on Environmental
Quality (“TCEQ”), which regulates the preconstruction
authorization process for the State of Texas under the
CAA’s Prevention of Significant Deterioration (“PSD”)
Program. See 42 U.S.C. § 7401, et seg. On February 21,
2006, the TCEQ completed a technical review of TXU’s
application and issued a preliminary decision and draft
permit. TXU requested the TCEQ to refer the
application to the State Administrative Office of

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Hearings (“SOAH”) for a hearing to determine whether it
complied with all relevant statutory and regulatory
requirements. One of the Appellants participated in this
hearing. On August 23, 2006, the SOAH issued a Proposal
for Decision approving the permit, subject to final review
by the TCEQ.

On December 1, 2006, after expiration of a 60-day
written notice,’ Appellants filed suit against TXU alleging
that its permit application does not comply with
requirements of the PSD Program. Specifically, Appellants
allege that (1) TXU is violating preconstruction emissions
standards and limitations mandated by the CAA; and
(2) TXU intends to construct its proposed plant without a
CAA-compliant permit. Appellants seek, inter alia,
(1) declaratory relief that TXU is in violation of the CAA;
(2) temporary and permanent injunctive relief prohibiting
the construction of the plant; and (3) an order that TXU
comply with the preconstruction requirements of the PSD
Program. They also seek an assessment of civil penalties
against TXU in the amount of $27,500.00 per day for each
violation.

On December 21, 2006, TXU filed a motion to dismiss
based on jurisdictional, justiciability, and abstention
grounds. On May 21, 2007, the district court granted the

1. Prior to filing certain citizen suits, the CAA requires
that aggrieved parties give 60 days notice of the standard,
limitation, or order alleged to be violated to (1) the EPA, (2) the
state in which the alleged violation occurred, and (3) the alleged
violator. See 42 U.S.C. § 7604(b). Here, Appellants sent the
requisite notice.

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motion to dismiss. Specifically, the district court held that
(1) Section 7604(a)(1) does not authorize citizen suits to
redress alleged pre-permit, preconstruction, pre-operation
CAA violations; (2) Section 7604(a)(3) of the CAA does not
authorize preconstruction citizen suits against entities that
either have obtained a permit or are in the process of doing
so; (3) Appellants failed to present a live case or controversy
because the state permit process is still ongoing; and
(4) even if it had subject matter jurisdiction, the district
court would abstain from exercising it pursuant to Burford
v Sun Oil Co, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424
(1943) because timely and adequate state court review was
available and the exercise of federal review would disrupt
state efforts to establish a coherent policy with respect to
a matter of substantial public concern. Appellants filed a
timely notice of appeal.

2. Subsequent to the filing of this appeal, on June 13, 2007,
the TCEQ voted to grant the permit and on June 20, 2007, issued
an order to that effect. On August 8, 2007, the TCEQ overruled
a motion for rehearing. Separate entities—other than the
parties in this case—have since filed suit in state court
challenging the issuance of the permit. TXU has filed an
unopposed motion for this court to take judicial notice of these
facts. A court may take judicial notice of a fact that is “not subject
to reasonable dispute in that it is either (1) generally known
within the territorial jurisdiction of the trial court or (2) capable
of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b).
“An appellate court may take judicial notice of facts, even if
such facts were not noticed by the trial court.” United States v.
Herrera-Ochoa, 245 F.3d 495, 501 (5th Cir.2001) (citing
Fed.R.Evid. 201(f)). We agree that these facts are the kind of
which this court could take judicial notice, though they do not
alter our disposition in this case.

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II. STATUTORY AND REGULATORY
FRAMEWORK

Congress enacted the 1970 Amendments to the CAA
to establish “a comprehensive national program that
made the States and the Federal Government partners
in the struggle against air pollution.” GM Corp. v.
United States, 496 U.S. 530, 582, 110 S.Ct. 2528, 110
L.Ed.2d 480 (1990). The 1970 Amendments indicate,
however, that although “[f]ederal financial assistance and
leadership is essential for the development of
cooperative Federal, State, regional, and local programs
to prevent and control air pollution,” see 42 U.S.C.
§ 7401(a)(4), “air pollution prevention (that is, the
reduction or elimination, through any measures, of the
amount of pollutants produced or created at the source)
and air pollution control at its source is the primary
responsibility of States and local governments.”
See 42 U.S.C. § 7401(a)(3). Thus, while the Amendments
assign the Environmental Protection Agency (“EPA”)
the responsibility for “prescribing a national primary
ambient air quality standard and a national secondary
ambient air quality standard” for certain pollutants,
see 42 U.S.C. § 7409(1)(A), they assign the States the
primary responsibility for “assuring air quality within
the entire geographic area comprising such State by
submitting an implementation plan for such State which
will specify the manner in which national primary and
secondary ambient air quality standards [(‘NAAQS’] will
be achieved and maintained within each air quality
control region in such State.” See 42 U.S.C. § 7407(a);
see also 42 U.S.C. § 7410(a)(1) (“Each State shall...

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adopt . . a a plan which provides for implementation,
maintenance, and enforcement of such primary .. . [and]
secondary standard in each air quality control region
(or portion thereof) within such State.”). They further
mandate that each State implementation plan (“SIP”)
include a permit program. See 42 U.S.C. § 7410(a)(2)(C).
In Texas, the TCEQ administers the State CAA permit
program.“

In 1977, further amendments were made to the
CAA in which Congress enacted the PSD Program,
see 42 U.S.C. 88 7470-7492, because the then-existing
EPA New Source Performance Standards did too little
to “achiev[e] the ambitious goals of the 1970
Amendments.” Envtl. Def v. Duke Energy Corp., 127
S.Ct. 1423, 1429 (2007) (citation omitted). Thus, the 1977
Amendments [gave] added protection to air quality in
certain parts of the country ‘notwithstanding attainment
and maintenance of’ the NAAQS.” Id. at 1427 (quoting

3. Although, the EPA is required to approve SIPs that
provide for the timely attainment and subsequent maintenance
of primary and secondary ambient air standards as well
as satisfy other CAA general requirements, see 42 U.S.C.
§ 7410(a)(3), the EPA has no authority to question the wisdom
of a State’s choices of emission limitations if they are part of a
SIP that otherwise satisfies the standards set forth in 42 U.S.C.
§ 7410(a)(2). “Thus, so long as the ultimate effect of a State’s
choice of emission limitations is compliance with the national
standards for ambient air, the State is at liberty to adopt
whatever mix of emission limitations it deems best suited to its
particular situation.” Train v. NRDC, 421 U.S. 60, 79, 95 S.Ct.
1470, 43 L.Ed.2d 731 (1975); see also Union Elec. Co. v. EPA, 427
U.S. 246, 268-69, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976).

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42 U.S.C. § 7470(1)). They also “assure[d] that any
decision to permit increased air pollution in any area to
which this section applies is made only after careful
evaluation of all the consequences of such a decision and
after adequate procedural opportunities for informed
public participation in the decisionmaking process.” 42
U.S.C. § 7470(5). To ensure CAA compliance, Congress
mandated the issuance of PSD permits before

construction of any “major emitting facility.”
See 42 U.S.C. § 7475(a)(1).

Under the 1977 Amendments—similar to the 1970
Amendments—“[s]tates have the primary role in
administering and enforcing the various components of
the PSD program.” ADEC v. EPA, 540 U.S. 461, 491
(2004) (quoting 57 Fed.Reg. 28,095 (1992)). However,
Congress has set forth explicit substantive and
procedural requirements that must be met prior to the
construction of any major emitting facility. The
substantive requirements include, inter alia, a
demonstration that: (1) “emissions from construction or
operation of such facility will not cause, or contribute
to, air pollution in excess of any” applicable emission
standards; (2) “the proposed facility is subject to the
best available control technology for each pollutant;” (3)
the facility complies with any applicable Class I area
protection requirements; (4) “there has been an analysis
of any air quality impacts projected for the area as a
result of growth associated with such facility;” and (5)
“the person who owns or operates, or proposes to own
or operate, a major emitting facility for which a permit

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is required under this part agrees to conduct such
monitoring as may be necessary to determine the effect
which emissions from any such facility may have, or is
having, on air quality in any area which may be affected
by emissions from such source.” See 42 U.S.C. §§
7475(a)(3)-(7), 7475(d). The procedural requirements
include, inter alia, a public hearing and an opportunity
for any interested person to appear and submit
comments on a proposed permit. See 42 U.S.C. §
7475(a)(2). The EPA further “interprets existing law and
regulations to require an opportunity for state judicial
review of PSD permit actions under approved PSD SIPs
by permit applicants and affected members of the public
in order to ensure an adequate and meaningful
opportunity for public review and comment on all issues
within the scope of the permitting decision, including
environmental justice concerns and alternatives to the
proposed source.” Approval and Promulgation of Air
Quality Implementation Plans; Commonwealth of
Virginia—Prevention of Significant Deterioration
Program, 61 Fed.Reg. 1880 (Jan. 24, 1996) (to be codified
at 40 C. F. R. pt. 52) (The EPA).

The State of Texas has an EPA-approved PSD
Program. See Approval and Promulgation of
Implementation Plans; Texas; Revisions to Regulations
for Control of Air Pollution by Permits for New Sources
and Modifications, 67 Fed.Reg. 58,697 (Sept. 18, 2002)
(to be codified at 40 C. FR. pt. 52). Pursuant to this
Program, “(bljefore work is begun on the construction
of a new facility or a modification of an existing facility
that may emit air contaminants, the person planning

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the construction or modification must obtain a permit or
permit amendment from the commission.” Tex. Health &
Safety Code § 382.0518(a). The general requirements for
a permit are set forth in Title 30 of the Texas
Administrative Code, Sections 116.111 and 116.160-63. In
reviewing a PSD permit application, Texas law provides
an opportunity for public comment. See 30 Tex. Admin.
Code § 55.150, et seg. Texas law also permits any person
granted party status to request and participate in
contested hearings before the SOAH. See 30 Tex. Admin.
Code § 55.200, et seg. Finally, Texas law allows for state
judicial review over any permit decision. See Tex. Gov’t
Code § 2001.001, et seq.

III. ANALYSIS

The district court dismissed CleanCOALition’s
complaint in this case for lack of subject matter
jurisdiction, a decision of a legal question we review
de novo. Meredith u La. Fed n of Teachers, 209 F.3d 398,
402 (5th Cir.2000). “A case is properly dismissed for lack of
subject matter jurisdiction when the court lacks the
statutory or constitutional power to adjudicate the case.”
Home Builders Ass n of Miss., Inc. u City of Madison,
143 F.3d 1006, 1010 (5th Cir.1998) (quoting Nowak u
Ironworkers Local 6 Pension Fund, 81 F3d 1182, 1187
(2d Cir.1996)).

The jurisdictional question in this case involves
construction of the CAAs citizen-suit provisions. “[T]he
starting point in every case involving construction of a
statute is the language itself.” Greyhound Corp. v. Mt.

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Hood Stages, Inc., 437 U.S. 322, 330, 98 S.Ct. 2370, 57
L.Ed.2d 239 (1978); see also Sutton v. United States, 819
Fd 1289, 1292 (5th Cir.1987) (“We begin, as we must, with
an analysis of the text of the statute itself.”). “If the intent
of Cong ss is clear, that is the end of the matter; for the
court .. must give effect to the unambiguously expressed
intent of Congress.” Chevron U.S.A., Inc. u Natural Res.
Def Council, Inc., 467 U.S. 837, 842-43 (1984); see also
Birdwell u Skeen, 983 F.2d 1332, 1339 (5th Cir.1993)
(“Where the language of a statute is clear and
unambiguous, courts should not undertake to add to or
detract from its provisions.”). “In determining the meaning
of the statute, we look not only to the particular statutory
language, but to the design of the statute as a whole and
to its object and policy.” Crandon u United States, 494
U.S. 152, 158 (1990) (citing K Mart Corp. v. Cartier, Inc.,
486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988));
Pilot Life Ins. Co. u Dedeaux, 481 U.S. 41, 51 (1987); see
also Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)
(“The plainness or ambiguity of statutory language is
determined by reference to the language itself, the specific
context in which that language is used, and the broader
context of the statute as a whole.”); King u St. Vincent’s
Hosp., 502 U.S. 215, 221 (1991) (“{A] statute is to be read
as a whole . . . since the meaning of statutory language,
plain or not, depends on context.”).

We now turn to the statutory text in question. The
CAA provides for federal citizen suit jurisdiction in three
circumstances:

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(1) Against any person .. 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 Act or (B) an order issued by the a
Administrator or a State with respect to such a ;
standard or limitation;

(2) Against the Administrator where there is
alleged a failure of the Administrator to perform
any act or duty under this Act which is not
discretionary with the Administrator, or

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(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 title I (relating to significant
deterioration of air quality) or part D of title I
(relating to nonattainment) or who is alleged to
have violated (if there is evidence that the
alleged violation has been repeated) or to be in
| violation of any condition of such permit.

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42 U.S.C. $§ 7604(a)(1)-(3).* Only the first and third
provisions are at issue in this case. We address each
provision in turn.

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4. These provisions “provide citizen participation in the
enforcement of standards and regulations established under [the
CAA].” Natural Res. Def Council v. Train, 510 F.2d 692, 699
(D.C.Cir.1975) (citations omitted). They reflect Congress’s
recognition that “citizens can be a useful instrument for detecting
violations and bringing them to the attention of the enforcement
agencies and courts alike.” Jd. at 699-700 (citations omitted).

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A. Whether § 7604(a)(1) authorizes citizen suits to
redress alleged pre-permit, preconstruction, pre-
operation CAA violations?

The district court held that § 7604(a)(1) does not
authorize citizen suits to redress alleged pre-permit,
preconstruction, pre-operation CAA violations.
According to the district court, when a facility is still in
the pre-permit, preconstruction, pre-operation stage,
it has yet to emit anything and cannot be deemed “to
have violated .. . or be in violation of an emission
standard or limitation.” See 42 U.S.C. § 7604(a)(1); see
also Weiler v. Catham Forest Prods., Inc., 392 F.3d 532,
538 (2d Cir.2004) (LA § 7604(a)(1)] suit can only be
brought against a private defendant after a facility has
been built and begun operation.”); Sugarloaf Citizens
Ass’n v. Montgomery County, No. 93-2475, 1994 WL
447442 at *8 n. 9 (4th Cir. Aug. 17, 1994) (unpublished)
(“[U]ntil construction is completed... [Appellees] can
neither begin emissions nor violate any emissions
standard.”). Appellants, citing §§ 7604(f)(3) and
7604(f)(4),° respond that the phrase “emission standard

5. Section 7604(f) broadly defines an “emission standard or
limitation under this Act” as follows:

(1) a schedule or timetable of compliance, emission
limitation, standard of performance or emission
standard;

(2) acontrol or prohibition respecting a motor vehicle
fuel or fuel additive;

(Cont’d)

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or limitation“ is defined broadly enough to encompass
preconstruction requirements and thus, TXU can be
deemed “to have violated . . . or be in violation of an
emission standard or limitation” simply by filing a permit
application without satisfying those requirements. We
address §§ 7604(f)(3) and § 7604(f)(4) in turn.

(Cont'd)
(3) any condition or requirement of a permit under part
C of title I (relating to significant deterioration of air
quality) [and other particular types of permits not
applicable here), any condition or requirement under an
applicable implementation plan relating to transportation
control measures, air quality maintenance plans, vehicle
inspection ana maintenance programs or vapor recovery
requirements, (fuel, fuel additives, visibility protection,
ozone protection, or stationary sources]; or

(4) any other standard, limitation, or schedule
established under any permit issued pursuant to title
V or under any applicable State implementation plan
approved by the Administrator, any permit term or
condition, and any requirement to obtain a permit as a
condition of operations;

which is in effect under this Act (including a
requirement applicable by reason of section 118 or
under an applicable implementation plan.)

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

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1. Whether the definition of “emission standard
or limitation,” as set forth in § 7604(f)(3), is
broad enough to include requirements for
filing preconstruction permit applications?

Appellants first argue that because “emission
standard or limitation” is defined to include “any
condition or requirement of a permit under part C of
title I (relating to significant deterioration of air
quality),” see 42 U.S.C. § 7604(f)(3), which contains
preconstruction requirements, TXU can be deemed “to
have violated . . . or be in violation of an emission
standard or limitation” simply by filing a permit
application without satisfying those requirements. We
disagree. One can hardly be deemed to have violated a
“condition or requirement of a permit” simply by filing
an incomplete permit application, in response to which
a permit may or may not issue. See Miss. River Revival,
Inc. v. EPA, 107 FSupp.2d 1008, 1015 (D.Minn.2000)
(construing Clean Water Act citizen suit provision, which
was modeled after the CAA, and finding that it “does
not authorize jurisdiction for an action challenging the
contents of a permit application.”); Freeman v.
Cincinnati Gas & Elec. Co., No. 1:06CV179, 2005 WL
2837466, at *2 (S.D.Ohio Oct. 27, 2005) (holding that a
proposed Title V air permit cannot form the basis of a
citizen suit). Nevertheless, Appellants invite us to
interpret the phrase “any condition or requirement of a
permit” te mean “any condition or requirement to obtain
a permit.” We decline to do so. Instead, we interpret
the phrase “of a permit” as doing nothing more than
broadening the definition of “emission standard or

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limitation” to include those conditions and requirements
found in any permit issued pursuant to any of the various
provisions listed in § 7604(f)(3).° Until the permit issues,
however, no “permit” exists to be violated. If Congress
wanted to define “emission standard or limitation” to
include any condition or requirement to obtain a
preconstruction permit, it certainly knew how to do so.
Indeed, the last clause of another section, § 7604(f)(4),
specifically defines “emission standard or limitation” to
include “any requirement to obtain a permit as a
condition to operations.” No similar counterpart exists
for a preconstruction permit, which is at issue in
this case and treated separately under the CAA.
Compare 42 U.S.C. § 7475 (preconstruction permits)
with 42 U.S.C. § 7661, et seg. (operation permits).
“Where 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

6. The legislative history supports our interpretation.
Indeed, according to the Joint Explanatory Statement of the
Committee of Conference, §§ 7604(a)(3) and 7604(f)(3) permit
citizens suits to redress “the violation of any condition or
requirement specified by the State or the Administrator under
a significant deterioration or non-attainment permit.
See H. Conf. Rep. No. 564, at 173 (1977), as reprinted in 1977
U.S.C.C.A.N. 1502, 1554.

7. Although Appellants argued before the district court
that this clause provides an alternative basis for jurisdiction,
they have since abandoned that argument, most likely because
it applies to operation permits and here, Appellants are
challenging TXU’s application for a preconstruction permit.

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inclusion or exclusion.” Russello v. United States, 464
U.S. 16, 23 (1983). Thus, we presume that by not
including similar language for preconstruction permits,
Congress did not intend, by virtue of § 7604(f)(3), to
define “emission standard or limitation” to include
conditions or requirements to obtain such permits.

2. Whether the definition of “emission standard
or limitation,” as set forth in § 7604(f)(4), is
broad enough to include requirements for
filing preconstruction permit applications?

The first clause of § 7604(f)(4) presents a much more
difficult question. Appellants argue that because that
clause defines “emission standard or limitation” to
include “any other standard, limitation, or schedule
established ... under any applicable State
implementation plan,” see 42 U.S.C. § 7604(f), and such
plans also contain preconstruction requirements, TXU
can be deemed “to have violated . . . or be in violation of
an emission standard or limitation” simply by filing a
permit application without satisfying those
requirements. The district court, noting that Appellants
are challenging TXU’s application for a preconstruction
permit, rejected this argument on the ground that
§ 7604(f)(4) is limited, in its entirety, to operating
permits. We disagree. It is true that § 7604(f)(4) was
added as part of Title V of the CAA’s operating permit
program, see CAA Amendments, Pub.L. No. 101-549,
Title III, § 302(f), Title VII, § 707(a)-(g), 104 Stat. 2574,
2682 (1990), and that certain clauses of that section are

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expressly limited to operating permits.“ However, the first
elause is not so limited and broadly defines emission
standard and limitation” to include “any other standard,
limitation, or schedule established.. under any applicable
State implementation plan.” Jd. The CAA further defines
“applicable implementation plan” to include plans involving
both preconstruction and operating permits. See 42 U.S.C.
§ 7602(q).° Thus, the district court erred in concluding that
§ 7604(f)(4), in its entirety, is limited to operating permits.
See Conservation Law Found., Inc. v. Romney, 421
FSupp. 2d 344, 350 n. 6 (D.Mass.2006); Cmtys. for a Better
Env’t v. Cenco Ref Co., 180 F.Supp.2d 1062, 1082
(C.D.Cal.2001).

8. For example, § 7604(f)(4) broadens the definition of
“emission standard or limitation” to include “any other
standard, limitation, or schedule established under any permit
issued pursuant to title V” and “any permit term or condition,
and any requirement to obtain a permit as a condition of
operations.” See 42 U.S.C. § 7604(f)(4).

9. That section provides:

For purposes of this Act, the term “applicable
implementation plan” means the portion (or
portions) of the implementation plan, or most recent
revision thereof, which has been approved under
section 110 [involving preconstruction permit
programs], or promulgated under section 110(c), or
promulgated or approved pursuant to regulations
promulgated under section 301(d) [involving
operating permit programs) and which implements
the relevant requirements of this Act.

42 U.S.C. S 7602(q).

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TXU argues that the first clause of § 7604(f)(4) is
inapplicable for a different reason. According to it, the
terms “standards” and “limitations” in that clause refer
only to “emission standards” and “emission limitations,”
which are further defined in the CAA to mean “a
requirement established by the State or the
Administrator which limits the quantity, rate, or
concentration of emissions of air pollutants on a
continuous basis. ]“ See 42 U.S.C. § 7602(k). Thus, under
its interpretation, because permit application
requirements do not limit “the quantity, rate, or
concentration of emissions of air pollutants on a
continuous basis,” they are not “emission standards” or
“emission limitations” and, concomitantly, TXU cannot
be deemed to have violated or be in violation of such
standards and limitations simply by filing an alleged
incomplete permit application. We disagree with TX U’s
basic premise that the terms “standards” and
“limitations” in the first clause of § 7604(f)(4) refer only
to “emission standards” and “emission limitations.”
Indeed, the plain text of that clause defines “emissions
standards and limitations” to mean “any other standard,
limitation, or schedule established .. . under any
applicable State implementation plan.” 42 U.S.C.
§ 7604(f)(4) (emphasis added). The use of the term
“other” indicates that Congress intended those terms
to mean something more than just “emission
standards” and “emission limitations.” We decline to
import the word “emission” into a clause that does not
expressly include it. See Cmtys. for a Better Env’t, 180
F. Supp. 2d at 1081; see also Conservation Law
Foundation u FHA, 24 Fàd 1465, 1477 n. 5 (Ist Cir.1994)

19a

Appendix A

(“Defendants’ use of the definition for ‘emissions standard
or limitation’ provided in 42 U.S.C. § 7602(k) (a requirement
‘established by the State or Administrator’) is improper
because § 7604(f) defines this term for all of § 7604,
trumping the definition in § 7602(k).”).!°

Although we reject the district court and TXU’s
interpretations of § 7604(f)(4), we need not decide today
whether the definition of “emission standard or
limitation” is broad enough, by virtue of § 7604(f)(4), to
encompass preconstruction requirements because even
if that phrase is so defined, we fail to see how TXU could
be held to violate those requirements simply by filing
an incomplete permit application, in response to which
a permit may or may not issue, especially when the
permit process is still pending and subject to state
judicial review. See Miss. River Revival, 107 FSupp 2d
at 1015; Freeman, 2005 WL 2837466, at *2. Indeed, the
preconstruction requirements set forth in the Texas SIP
such as evidence that the facility will utilize the best
available control technology, are preconditions for

10. Moreover, TXU’s interpretation would render
superfluous another section, § 7604(f)(1), which already defines
the phrase “emission standard or limitation” to include an
“emission standard” or “emission limitation.” See 42 U.S.C.
§ 7604(f)(1). “It is a cardinal principle of statutory construction
that a statute ought, upon the whole, to be so construed that, if
it can be prevented, no clause, sentence, or word shall be
superfluous, void, or insignificant.” TRW Inc. v. Andrews, 534
U.S. 19, 31 (2001) (internal quotations and citation omitted);
see also Hoffman v. Kramer, 362 F.3d 308, 318 n.7 (5th Cir.2004).

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Appendix A

granting a preconstruction permit, not preconditions for
filing a preconstruction permit application. See 30 Tex.
Admin. Code § 116.111(a). Presumably, an entity can file
as many incomplete permit applications as it so chooses,
but that does not mean in doing so, it is violating a
preconstruction requirement or an emission standard or
limitation. Moreover, the Eleventh Circuit has held,
following a long line of district court cases, that “violations
of the preconstruction permitting requirements occur at
the time of construction.” Natl Parks & Conservation
Ass nu TVA, 502 F:3d 1316, 1322 (11th Cir.2007) (collecting
cases and quoting New York u Niagara Mohawk Power
Corp., 263 FSupp. 2d 650, 661 (W.D.N.Y.2003)). Here, the
facility at issue has not yet begun construction and no
perinit has been issued. In short, we agree with the district
court’s ultimate conclusion that under the plain language
of § 7604(a)(1), TXU’s mere filing of an alleged incomplete
permit application does not constitute a violation of an
emission standard or limitation under the CAA and,
concomitantly, that subject matter jurisdiction is lacking
in this case.“

To the extent that Appellants argue that jurisdiction
under § 7604(a)(1) is implied in this case, “[ijt is an
elemental canon of statutory construction that where a
statute expressly provides a particular remedy or
remedies, a court must be chary of reading others into
it.” Middlesex County Sewerage Auth. v. Nat'l Sea

11. Whether § 7604(a)(1) redresses alleged preconstruction
violations against either TXU or the TCEQ once the permit
issues and/or construction of the facility commences are issues
we need not decide today.

2la

Appendix A

Clammers Assn., 453 U.S. 1, 14-15 (1981). As the
Supreme Court has explained, where Congress has
provided “elaborate enforcement provisions” for
remedying the violation of a federal statute—as
Congress has done with the CAA—“it cannot be
assumed that Congress intended to authorize by
implication additional judicial remedies for private
citizens suing under [the statute].” Jd. at 14, 101 S.Ct.
2615 (quoting Transamerica Mortgage Advisors, Inc.
v. Lewis, 444 U.S. 11, 19 (1979)). Here, Congress and
the EPA have set forth an elaborate enforcement
scheme through which citizens have an opportunity to
participate in public hearings and state court
proceedings involving the issuance of any construction
permit. See 42 U.S.C. § 7475(a)(2); see also Approval
and Promulgation of Air Quality Implementation Plans;
Commonwealth of Virginia—Prevention of Significant
Deterioration Program, 61 Fed.Reg. 1880 (Jan. 24, 1996)
(to be codified at 40 C. FR. pt. 52). It would seem odd
then that Congress would simultaneously authorize
citizens to bypass this process altogether and seek
simultaneous review in federal court.“

12. Appellants, citing Title V of the CAA, argue that such
dual enforcement is common. Although Title V of the CAA
provides for federal judicial review to evaluate the validity of
an operating permit, see 42 U.S.C. § 7661d(b)(2), it only does so
after the issuance of the permit and the subsequent denial of
the aggrieved party’s administrative petition for review. Thus,
contrary to Appellants’ interpretation, Title V does not provide
for simultaneous federal review while the state operating permit
process is still ongoing.

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Appendix A

B. Whether § 7604(a)(3) authorizes preconstruction
citizen suits against facilities that either have
obtained a permit or are in the process of doing so?

The district court held that § 7604(a)(3) does not
authorize preconstruction citizen suits against facilities
that have either obtained a permit or are in the process
of doing so. Instead, the district court interpreted that
section as authorizing citizen suits when an entity
proposes to construct or constructs a facility without a
permit whatsoever. We agree with the district court’s
interpretation. Appellants interpret the phrase “without
a permit” to mean “without a permit that complies with
the CAA.” !“ However, we decline to rewrite the plain

13. Appellants cite legislative history to support their
interpretation. According to the Senate amendment, “Section
[7604] . . is amended to allow a citizen to bring suit to prevent
construction of a major emitting facility without a permit in
compliance with [various sections of the CAA].” See H. Conf.
Rep. No. 564, at 173 (1977), as reprinted in 1977 U.S.C.C.A.N.
1502, 1553 (emphasis added). Appellants interpret the phrase
“without a permit in compliance with the CAA” to mean “without
a permit that complies with the CAA.” Thus, according to
Appellants, a facility can be deemed to have violated § 7604(a)(3)
simply by filing a permit application that fails to comply with
the CAA. However, whether the use of word “compliance” in
the Senate amendment necessarily means that Congress
intended to authorize citizen suits to second-guess state agency
permit determinations while those determinations are still
pending is far from clear. Moreover, the subsequent House
Conference Report, which concurs in the Senate amendment,
omits the phrase “in compliance with” altogether and simply
states that § 7604(a)(3) is amended so that “citizens suits are

(Cont'd)

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Appendix A

language of the statute. Here, not only has TXU applied
for a permit, it has since successfully obtained one,
though still subject to state judicial review. Thus, it can
hardly be said~—as Appellants must in order for
§ 7604(a)(3) to apply—that TXU is proposing to
construct or constructing a facility “without a permit.”
See Ogden Projects v. New Morgan Landfill Co., 911
F.Supp. 863, 867-68 (E.D.Pa.1996) (indicating that §
7604(a)(3) authorizes citizen suits when facility is
proposing to construct plant without a permit at all);
see also Heisen v. Pacific Coast Bldg. Prods., Inc., No.
93-16213, 1994 WL 250029, *1 (9th Cir. Jun. 9, 1994)
(unpublished) (rejecting attempt to utilize § 7604(a)(3)
to collaterally attack issuance of permit by alleging that
facility submitted fraudulent information to obtain it).
In short, we agree with the district court that §
7604(a)(3) does not authorize preconstruction citizen
suits against facilities that have either obtained a permit
or are in the process of doing so.

(Cont'd)

authorized against sources to enforce compliance only with
respect to... any proposal to construct or the construction of
any new or modified major emitting facility without a permit
under the prevention of significant deterioration provision or
the nonattainment provisions.” See H. Conf. Rep. No. 564, at
173 (1977), as reprinted in 1977 U.S.C.C.A.N. 1502, 1554
(emphasis added). Thus, the legislative history is less than
determinative and far from helpful.

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Appendix A
IV. CONCLUSION

For the foregoing reasons, we affirm the judgment
of the district court."

AFFIRMED.

14. Because we find the district court lacks subject matter
jurisdiction in this case, we do not address the remaining
justiciability and abstention issues reached by that court.

25a

APPENDIX B — ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT
OF TEXAS, WACO DIVISION
DATED AND FILED MAY 21, 2007

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION

CIVIL ACTION NO. W-06-CA-355

CLEANCOALITION AND ROBERTSON COUNTY:
OUR LAND, OUR LIVES,

Plaintiffs,
v.

TXU POWER, A D/B/A OF TXU GENERATION
COMPANY LP, OAK GROVE MANAGEMENT
COMPANY LP, AND TXU CORPORATION,

Defendants.
ORDER

Before the Court is Defendants Oak Grove
Management Company LLC, TXU Power, a D/B/A of
TXU Generation Company LP And TXU Corp.’s Motion
To Dismiss. The Court held a hearing on this Motion on
March 23, 2007. Having heard the arguments of the
parties and reviewed the Motion, Response, Reply,
pleadings, and applicable legal authority, the Court finds
that the Motion has merit and should be granted.

26a

Appendix B
I. BACKGROUND

The project at issue in this case is proposed by Oak
Grove Management LLC (“Oak Grove”) and consists of
the construction and development of a 1,720 MW power
generating facility in Robertson County (“the Project”).
The proposed facility will be fueled by Texas-mined
lignite. The Project will help fulfill a demand for
generation of power in Texas, and will result in
approximately 1,800 on-site construction jobs,
permanent employment of almost 2,000 persons, and
approximately $800 million in spending.

In order to construct the Project, on July 27, 2005,
Oak Grove applied to the Texas Commission on
Environmental Quality (“TCEQ”) for an air permit,
which includes a preconstruction authorization under
the Prevention of Significant Deterioration (“PSD”)
Program of the federal Clean Air Act (“CAA”).! Oak
Grove subsequently updated its application, and on
February 21, 2006, the TCEQ completed a technical
review of the application and issued a preliminary
decision and draft permit.

Oak Grove then requested that the TCEQ refer the
permit application to the State Administrative Office of
Hearings (“SOAH”) for a hearing to determine whether
it complied with statutory and regulatory requirements.
Plaintiff Robertson County: Our Land, Our Lives
(“RCOLOL’) participated as a party in the hearing
before SOAH. A Proposal for Decision was issued by

1. See Plaintiff’s Complaint, J 13, 25.

~~ 7" =. yee et ee

SP ae Od WY Ue

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Appendix B

SOAH on August 23, 2006. This decision is currently
being reviewed by the TCEQ to determine whether the
permit should issue.

On December 1, 2006, Plaintiffs CleanCoalition and
RCOLOL filed a citizen suit pursuant to the federal CAA
against Defendants TXU Power, a d/b/a of TXU
Generation Company, LP, Oak Grove Management
Company, LLC, and TXU Corporation (collectively
“Defendants”) regarding the Project. Defendants have
now filed a Motion to Dismiss under Fed. R. Civ. P
12(b)(1) and 12(b)(6).

II. LEGAL AUTHORITY
A. Standard of Review

Rule 12(b)(1) demands dismissal if the court lacks
jurisdiction over the subject matter of the plaintiff’s
claims. Fed. R. Civ. E 12(b)(1); Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001). Lack of subject
matter jurisdiction may be found in any one of three
instances: (1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the
record; or (3) the complaint supplemented by undisputed
facts plus the court’s resolution of disputed facts.
Barrera-Montenegro u United States, 74 F.3d 657, 659
(5th Cir. 1996). The burden of proof in a Rule 12(b)(1)
motion to dismiss rests with the party asserting
jurisdiction. See Strain v. Harrelson Rubber Co., 742
Fd 888, 889 (5th Cir. 1984); Menchaca u Chrysler Credit
Corp., 613 F.2d 507, 511 (5th Cir. 1980). A case is

¥
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28a

Appendix B

properly dismissed for lack of subject matter jurisdiction
when the court lacks the statutory or constitutional
power to adjudicate the case.“ Home Builders Ass N of
Miss., Inc. u. City of Madison, 143 F.3d 1006, 1010 (5th
Cir. 1998) (quoting Nowak v. Ironworkers Local 6
Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). When
a Rule 12(b)(1) motion is filed in conjunction with other
Rule 12 motions, the court should consider the Rule
12(b)(1) jurisdictional attack before addressing any
attack on the merits. Ramming, 281 F.3d at 161. This
requirement prevents a court without jurisdiction from
prematurely dismissing a case with prejudice. /d.

A motion to dismiss under Rule 12(b)(6) “is viewed
with disfavor and is rarely granted.” Kaiser Aluminum
& Chemical Sales, Inc. v. Avondale Shipyards, Inc.,
677 F.2d 1045, 1050 (5th Cir. 1982), quoting 5 C. Wright
and A. Miller, Federal Practice and Procedure 5 1357 at
598 (1969). It is well settled that “a complaint should
not be dismissed for failure to state a claim unless it
appears beyond doubt that the Plaintiff can prove no
set of facts in support of his claim which would entitle
him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957);
Boudeloche v. Grow Chemical Coatings Corps., 728 Fd
759, 762 (5th Cir. 1984); Kaiser, 677 F.2d at 1050. When
considering such a motion, the complaint must be
liberally construed in the plaintiff’s favor, and all facts
well pleaded in the complaint should be accepted as true.
Campbell u Wells Fargo Bank, N.A., 781 F.2d 440, 442
(5th Cir. 1986). “The question therefore is whether in
the light most favorable to Plaintiff and with every doubt
resolved in his behalf, the complaint states any valid

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Appendix B

claim for relief.” 5 Wright and Miller, Federal Practice
and Procedure, Section 1357 at 601.

B. Statutory and Regulatory Background

Congress established in the CAA “a comprehensive
national program that ma[kes] the States and the
Federal Government partners in the struggle against
air pollution.” General Motors Corp. v. United States,
496 U.S. 530, 532 (1990). The Act makes clear, however,
that “air pollution prevention . . . and air pollution
control at its source is the primary responsibility of
States and local governments.” 42 U.S.C. § 7401(a)(3)
(emphasis added); see also id. § 7407(a). Thus, while the
CAA assigns EPA the responsibility for establishing
national ambient air quality standards (“NAAQS”) (i. e.,
the standards for the air we breathe) for certain
pollutants, see 42 U.S.C. § 7409, the Act assigns the
States the responsibility for ensuring compliance with
them through “State Implementation Plans” or “SIPs.”
See id. §§ 7407(a), 7410(a).

The SIPs are comprised of State regulations that,
among other things, set emission limitations for sources
in the State so as to meet and maintain the NAAQS.
SIPs include permitting programs such as the PSD
program cited in the Complaint. EPA must approve the
SIP for it to become effective under the federal CAA
(and such EPA approval is subject to judicial review in
the U.S. Court of Appeals, see 42 U.S.C. § 7607(b)(1)).
But EPA has no authority to second-guess the State’s
choice of emission limitations, so long as the SIP

30a

Appendix B

achieves its ultimate purpose of attaining and
maintaining the NAAQS. See Train v. NRDC, 421 U.S.
60, 79 (1975); see also Union Elec. Co. u EPA, 427 U.S.
246, 269 (1976).

In 1977, Congress enacted the PSD program at
issue in this case. 42 U.S.C. §§ 7470-7492. Like the
NAAQS program, PSD is implemented and enforced
primarily by the States through their SIPs. See, e.g.,
Alaska Dep't Envt’l Conserv. u EPA, 540 U.S. 461, 491
(2004) (ADEC) (citing 57 Fed. Reg. 28,095 (1992)
(“[S]tates have the primary role of administering and
enforcing the various componenis of the PSD
program.”)) The PSD program is a comprehensive
permitting scheme for “major emitting facilities” in
areas of the country that are designated having attained
the NAAQS (or are “unclassifiable” with respect to the
NAAQS). Thus, the cornerstone requirement of the PSD
program is that a new source (of a type and size subject
to PSD) must obtain a PSD permit before “construction
is commenced.” 42 U.S.C. § 7475(a)(1). Once the State’s
PSD program is approved as a part of the SIP it is the
State permitting authority, not EPA, that issues a PSD
permit for new facilities in that State.

Congress set both substantive and procedural
requirements that PSD permits must meet. The
substantive requirements include: (i) a demonstration
that the emissions from the new source will not adversely
affect air quality, id. $§ 7473, 7475(a)(3); (ii) installation
of the “best available control technology,” or “BACT,”
which is determined on a case-by-case basis by the State

3la

Appendix B

permitting agency, exercising its judgment on technical
issues and taking into account energy, environmental,
and economic impacts and other costs, id. §§ 7475(a)(4),
7479(3), see ADEC, 540 U.S. at 472-73, 494; (iii)
satisfaction of any applicable “Class I” area protection
requirements, 42 U.S.C. § 7475(a)(5); (iv) analysis of
any secondary air quality impacts, id. § 7475(a)(6); and
(v) monitoring requirements, id. § 7475(a)(7).

Congress also required elaborate procedural
safeguards for States to issue permits, including a public
hearing and an opportunity for any interested person
to appear and submit comments on a proposed permit.
Id. & 7475(a)(2). A State’s PSD program must contain
procedures that implement at least all of these statutory
requirements—substantive and procedural—to be
“approvable” as part of a SIP Furthermore, EPA has
interpreted the Act to require adequate procedures for
judicial review in State court of PSD permits issued by
a State before EPA will approve a PSD program into
the SIP 61 Fed. Reg. 1,880, 1,882 (1996); see ADEC, 540
U.S. at 508 (Kennedy, J., dissenting).

The State of Texas has a SIP-approved PSD
program that EPA found complies with all of the
procedural and substantive requirements of the statute,
and that program is administered by the TCEQ. See 67
Fed. Reg. 58,697-58,711 (2002). Under this approved
program, before construction can begin on proposed new
facilities that may emit air contaminants, the person
planning the construction must obtain a preconstruction
permit from the TCEQ. Tex. Health & Safety Code Ann.

: Pere Le se ee

32a

Appendix B

§ 382.0518. Preconstruction PSD permits are required
for proposed “major stationary source” facilities,
such as the Project, located in “attainment areas,”
such as Robertson County. 30 Tex. Admin. Code
§§ 116.111(a)(2)(1), 116.160-63. In reviewing a PSD
permit application, the TCEQ provides opportunity for
public comment. 30 Tex. Admin. Code Ann. § 55.150 et
seq. Additionally, persons may request and participate
in contested case hearings before the SOAH if they are
granted party status. Jd. § 55.200 et seg. The Texas air
permit process also provides for judicial review in state
court in Travis County of the TCEQ’s decision to issue
a permit. Tex. Gov’t Code Ann § 2001.001 et seq.

C. Citizen Suits

Section 7604 is the sole source of authority for
citizen suits under the federal CAA. This provision
authorizes citizen suits in only three circumstances:

(1) Against any person 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 Act or (B) an order issued
by the Administrator or a State with respect
to such a standard or limitation,

(2) Against the Administrator where there is
alleged a failure of the Administrator to
perform any act or duty under this Act which

33a

Appendix B

is not discretionary with the Administrator?
or

(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 title I [42 USCS §§ 7470 et seq.]
(relating to deterioration of air quality) or part
D of title I [42 USCS 88 7501 et seq.] (relating
to nonattainment) or who is alleged to have
violated (if there is evidence that the alleged
violation has been repeated) or to be in violation
of any condition of such permit.

42 U.S.C. §§ 7604(a)(1) - (3).
D. Statutory Construction

Statutory construction begins with the plain
language of a statute, but “plain” does not always mean
“indisputable” or “pellucid.” Aviall Servs. v. Cooper
Indus., 312 F3d 677, 680 (5th Cir. Tex. 2002), rev'd on
other grounds, 543 U.S. 157 (2004). Consequently, sound
interpretation reconciles the text of a disputed provision
with the structure of the law of which it is a part; may
draw strength from the history of enactment of the
provision; and acknowledges the legislature’s general
policies so that the interpretation does not become
absurd. Id. (citing Crandon v. United States, 494 U.S.

2. 42 U.S.C. § 7604(a)(2) is not at issue in this case.
3. CAA §§ 304(a)(1) - (3).

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Appendix B

152, 158, 110 S. Ct. 997, 1001, 108 L. Ed. 2d 132 (1990)
(“In determining the meaning of the statute, we look
not only to the particular statutory language, but to the
design of the statute as a whole and to its object and
policy.“); Perrone u GMAC, 232 Fd 433, 440 (5th Cir.
2000) (stating that use of legislative history is
appropriate where statutory text is “opaque,”
“translucent,” or “ambiguous”), cert. denied, 532 U.S.
971 (2001); United States v. A Female Juvenile, 103 F.3d
14, 16-17 (5th Cir. 1996) (“Axiomatic in statutory
interpretation is the principle that laws should be
construed to avoid an absurd or unreasonable result.”);
In re Timbers of Inwood Forest Assocs., Ltd., 793 F.2d
1380, 1384 (5th Cir. 1986) (“Each part or section [of a
statute] should be construed in connection with every
other part or section so as to produce a harmonious
whole. Thus it is not proper to confine interpretation to
the one section to be construed.”)).

III. ARGUMENTS AND ANALYSIS
A. Standard of Review

Plaintiffs argue that because Defendants seek relief
under Rules 12(b)(1) and 12(b)(6), Defendant’s
requested relief should be evaluated solely under Rule
12(b)(6). See Williamson v. Tucker, 645 F.2d 404, 415-16
(5th Cir. 1981). Plaintiffs assert that when a defendant
chalienges both the court’s jurisdiction and the
existence of a federal cause of action, the Fifth Circuit
requires a court to find that jurisdiction exists and deal
with the objection as a direct attack on the merits.

35a

Appendix B

Plaintiffs argue that questions of subject matter
jurisdiction and the merits are normally considered
“intertwined” where a statute provides both the basis
of federal subject matter jurisdiction and the cause of
action. Clark u Tarrant County, Tex., 798 F.2d 736, 742
(5th Cir. 1986). Plaintiffs assert that both the subject
matter jurisdiction and the causes of action are provided
by 42 U.S.C. S 7604.

Defendants assert that it is not necessary to address
the “merits” of Plaintiffs’ case in order to rule on
Defendants’ Motion. Defendants argue that all facts
necessary to grant Defendants’ Motion are admitted in
Plaintiffs’ Complaint because Plaintiffs admit that an
application for a permit is pending before the TCEQ,
that construction has not commenced, and that no
permit has yet been issued on the pending application.
Even if the issue of jurisdiction were held to be
intertwined with the merits, Defendants argue that the
Complaint would still be subject to a facial attack under
Rule 12(b)(1), and if it fails to survive that challenge,
dismissal under Rule 12(b)(1) is appropriate. See Lewis
u. Knutson, 699 F.2d 230, 237 (5th Cir. 1983).

The Fifth Circuit stated in Lewis:

In the special case where the challenged basis
of jurisdiction is also an element of plaintiff’s
federal cause of action, the proper course of
action is to limit the jurisdictional inquiry to
facial scrutiny, and reserve the factual
scrutiny for the merits of the cause of action.

36a

Appendix B

See Williamson u Tucker, 645 Fd 404, 415 (5th
Cir.), cert. denied, 454 U.S. 897, 102 S. Ct. 396,
70 L. Ed. 2d 212 (1982) (quoting Bell u Hood,
327 U.S. 678, 682, 66 S. Ct. 773, 776, 90 L. Ed.
939 (1945)). If the facial attack defeats
jurisdiction, the case should be dismissed under
Rule 12(b)(1). If the case survives the facial
jurisdictional attack, a failure of the existence
of the cause of action should be disposed by a
Rule 12(b)(6) dismissal on the merits. See, e.g.,
Industrial Investment Development Corp. v.
Mitsui & Co., 671 F.2d 876, 886 & n. 9 (5th
Cir.1982). Conversely, if the jurisdictional
challenge does not implicate the merits of the
cause of action, the jurisdictional basis must
survive both facial and factual attacks before
the district court can address the merits of
the claim. See Williamson, 645 Fd at 412-15
& n. 9.

699 F.2d at 237. As Defendants argue, whether or not
the issue of jurisdiction is intertwined with the merits
in this case, Plaintiffs’ Complaint is subject to a facial
attack under Rule 12(b)(1). Accordingly, the Court
will limit its jurisdictional inquiry to facial scrutiny.
See Williamson, 645 Fd at 415.

37a

Appendix B
B. Section 304(a)(1)

Defendants argue there is no jurisdiction under
section 304(a)(1). First, Defendants argue that a project
that does not exist has zero emissions; thus, it cannot
be in violation of emission standards let alone have
repeated violations. See Sugarloaf Citizens Ass’n v.
Montgomery County, 33 F.3d 52 (Table), No. 93-2475,
1994 U.S. App. LEXIS 21985, at *20 n.9 (4th Cir. Aug.
17, 1994) (finding lack of citizen suit jurisdiction on
grounds that defendants “have all of the permits
required for the construction of this facility, and until
construction is completed. . ., can neither begin
emissions nor violate any emissions standard”). Second,
Plaintiffs’ suit is premised on a permit application.
Defendants argue that a permit application itself cannot
violate an “emission limitation;” thus, a citizen suit
cannot be based on a permit application. See Freeman
v. Cincinnati Gas & Electric Co., 2005 U.S. Dist. LEXIS
42524, *6-7 (S.D. Ohio October 27, 2005) (unpublished)
(holding that a proposed Title V air permit cannot form
the basis of a citizen suit); Mississippi River Revival,
Inc. u EPA, 107 F. Supp. 2d 1008, 1015 (D. Minn. 2000)
(construing the Clean Water Act citizen suit provision,
which was modeled after CAA § 304(a)(1), and finding
that it “does not authorize jurisdiction for an action
challenging the contents of a permit application.”).

Plaintiffs first respond that the only requirement
under section 304(a)(1) is that they must provide 60 days
notice, which they assert they provided to Defendants.
Plaintiffs also assert that the Court should consider the

Dre m eee

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Appendix B

definition of “emission standard or limitation” in section
304(f). Plaintiffs argue that the statute defines emission
standard or limitation” to include, among other things,
PSD requirements and SIP requirements. Plaintiffs
argue that violations of both PSD requirements and SIP
requirements will support a citizen suit under section
304(a)(1). See New York v. Niagara Mohawk Power
Corp., 263 F Supp. 2d 650, 663 (WD. N. V. 2003). However,
Plaintiffs also argue that the definition is much broader
because Courts construe the term to mean “any type of
control to reduce the amount of emissions in the air.”
See NRDC Uu EPA, 489 Fd 390, 394 n.2 (5th Cir. 1974),
rev'd on other grounds sub nom. Train v. NRDC, 421
U.S. 60 (1975). Plaintiffs assert the broad construction
stems from the definition in (f)(4): “any other standard,
limitation, or schedule established under any permit
issued pursuant to title V [ ] or under any applicable
State implementation plan approved by the
Administrator, any permit term or condition, and any
requirement to obtain a permit as a condition of
operations.” 42 U.S.C. § 7604(f)(4). Plaintiffs argue that
because Congress included this language regarding
requirements to obtain a permit, Congress intended
that a section (a)(1) claim may be based on a violation of
any pre-permit requirements imposed to obtain a
permit. Thus, Plaintiffs assert that it is possible to
violate an emission standard or limitation before a
permit is issued. Plaintiffs allege that Defendants
violated pre-permit requirements including “best
available control technology” (“BACT”) analysis, PSD
requirements during the permit application process,
SIP requirements during the permit application process,

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Appendix B

and federal and state requirements imposed in order to
“obtain a permit” prior to beginning operation.

Defendants reply that Plaintiffs have paraphrased
the statutory definition of “emission standard or
limitation” and eliminated key language. Defendants
argue that this section does not define “emission
standard or limitation” in terms of “PSD” requirements”
but, rather “any condition or requirement of a permit
under” the PSD provisions. 42 U.S.C. § 7604(f)(3)
(emphasis added). Defendants assert that there is no
allegation in the Complaint that they are in violation of
any requirements or conditions of a PSD permit; thus,
because no permit has been issued, there is no
“condition or requirement of a permit” and no “emission
standard or limitation” at issue under section 304(f)(3).
Defendants argue that the language in section 304(f)(3)
regarding SIPs applies only to transportation control
measures, vehicle maintenance and inspection plans,
and other topics not related to PSD or this case.
Defendants argue that language in section 304(f)(4)
regarding SIPs clearly applies to “any other standard,
limitation, or schedule established . . under any
applicable State implementation plan,” and not the SIP
generally. Lastly, Defendants state that section 304(f)(4)
was added in 1990 as part of the Title V operating permit
program and is separate and apart from the PSD
construction permit program at issue in this case; thus,
it is not applicable here.

The Court finds that it lacks jurisdiction under
section 304(a)(1). Section 304(a)(1) allows a citizen suit

40a

Appendix B

against any person who is alleged to have violated or
who is in violation of an emission standard or limitation
under the Act. 42 U.S.C. § 7604(a)(1). The definition of
“emission standard or limitation” in section 304(f)(4) is
not applicable here because it applies to the operating
permit program. Plaintiffs have excluded key terms in
the definition in section 304(f)(3) to support their
argument. The definition states “any condition or
requirement of a permit under” the PSD provisions.
See 42 U.S.C. § 7604(f)(3) (emphasis added). Because
Plaintiffs do not allege any condition or requirement of
an issued permit in their Complaint, there is no
“emission standard or limitation” to consider under
section 304(a)(1). Based on the plain language of section
304(a)(1) and 304(f)(3), because no permit has issued for
the Oak Grove project and the Plant does not yet exist,
it cannot be in violation of any emission standards or
limitations. See id. §§ 7604(a)(1), (f)(3); Sugarloaf
Citizens, 1994 U.S. App. LEXIS 21985, at 20 n.9. Thus,
providing 60 days notice is not the only requirement
under section 304(a)(1). There must be an alleged
violation of a condition or standard of an issued permit.

Next, the Court distinguishes the Niagara Mohawk
case. In Niagera Mohawk, the defendants built a facility
without obtaining a permit at ali. See Niagara Mohawk,
263 F Supp. 2d at 654. Thus, the State brought a citizen
suit against the defendants under section 304(a)(1) and
304(a) (3). The district court held that some of the claims
were time barred but the citizen suit was proper.
Specifically under section 304(a)(1), the court stated the
permitting authority did not even have the opportunity

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Appendix B

to conduct a BACT analysis because of defendants
failure to follow the proper preconstruction procedures.
Id. at 663. Thus, the Court held that it would not be
proper to allow defendants to frustrate the goals of the
statute by dismissing Plaintiff’s claims under section
304(a)(1) because it appeared uncontroverted “that if
BACT had been determined by the permitting authority
and the Facilities were not in compliance, suit would be
authorized under” section 304(a)(1). Id. In contrast, the
TCEQ is still determining BACT for the Oak Grove
project as the State permitting process is not yet
complete for Plaintiffs’ permit application.

Lastly, Defendants’ permit application itself cannot
violate an emission standard or limitation, which is all
that Plaintiffs have alleged that Defendants have done
to this point. See Mississippi River, 107 F. Supp. 2d at
1015; Freeman, 2005 U.S. Dist. LEXIS 42524 at *6-7.
Congress expressly intended that the establishment of
an alleged violation not involve the “reanalysis of
technological or other considerations at the enforcement
stage.” Citizens Ass nu Washington, 535 Fd 1318, 1322
(D.C. Cir. 1976). If Plaintiffs believe Defendants’ permit
application contains information that may lead to
potential violations of emissions standards or limitations
when the Oak Grove project is constructed, the State
permitting process provides an opportunity for their
comments to be heard, and the TCEQ is the proper
authority to conduct a technical review of those
comments.

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Appendix B
C. Section 304(a)(3)

Defendants argue there is no jurisdiction under
section 304(a)(3). First, Defendants assert that Oak
Grove has never stated any intention to construct the
plant without a permit—Plaintiffs even admit that Oak
Grove has submitted an application for a PSD permit,
and, at this time, the permit process is ongoing. Second,
Defendants argue that section 304(a)(3) does not provide
jurisdiction over complaints that a permit application is
allegedly defective. Defendants argue that section
304(a)(3) only authorizes suit for a failure to obtain a
permit at all. See Ogden Projects, Inc. v. New Morgan
Landfill Co, 911 F Supp. 863, 867-68 (E. D. Pa. 1996)
(“[A] substantive challenge to the conditions of the
permit would lie in state court, challenges based on the
state’s failure to require a permit at all are proper in
federal court.”). Defendants assert that these
circumstances are not met here because Oak Grove has
applied for a permit, the TCEQ has determined that a
permit is required, and the TCEQ is determining
whether the permit should issue and any terms and
conditions that may be necessary. Defendants assert
that the review of any permit granted and its terms and
conditions would occur in state court.

Plaintiffs argue that a permit based on a defective
application is not a permit in compliance with section
304(a)(3). Plaintiffs assert that a permit: (1) must be
based on supporting materials submitted by the
applicant and its agents; (2) must arise from a proper
BACT analysis; and (3) must set forth the parameters

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43a

Appendix B

that will apply to the construction and operation of the
proposed facility. 42 U.S.C. § 7475(a). Plaintiffs assert
that an entity that proposes to construct a facility based
on a defective application is proposing to construct a
facility “without a permit required under part C.”
Plaintiffs allege that Defendants did not, among other
things, satisfy Part C permit requirements, which
include:

(1) analysis as to the proposed permit be
conducted in accordance with applicable
standards;

(2) demonstrate that emissions from
construction or operation of the Oak Grove
Plant will not cause, or contribute to, air
pollution in excess of the relevant standards;

(3) proposed facility be subject to BACT for
each pollutant subject to regulation under this
chapter emitted from or which results from,
such facility;

(4) analysis of any air quality impacts
projected for the area as a result of growth
associated with such facility; and

(5) owner/operator agree to conduct the
required monitoring.

42 U.S.C. § 7475(a)(2)-(4), (6)-(7). Plaintiffs argue that a
permit issued on the basis of a defective application also

44a

Appendix B

violates Part C. Thus, Plaintiffs assert that construction
of a facility pursuant to the non-compliant permit would
then violate Part C because the construction would
occur without a permit that satisfies the Part C
requirements. Plaintiffs argue that because of the
cascading effect of a permit application violation, the
CAA allows a citizen to sue before a facility is constructed
based on a proposal to construct that does not comply
with the PSD requirements for a permit application.
Plaintiffs assert that under Defendants’ interpretation
of section 304(a)(3), there would never be a section
304(a)(3) violation unless it could be brought pre-permit.
Lastly, Plaintiffs argue that the Court should follow the
U.S. Supreme Court in ADEC where it allowed the EPA
to seek judicial review of the reasonableness of a state
permitting agency’s BACT determination in issuing a
PSD permit. See ADEC, 540 U.S. at 484-93.

Detendants reply that Plaintiffs reading of section
304(a)(3) is an attempt to rewrite the phrase “without a
permit required under [PSD or nonattainment NSR]”
to “without a permit that complies with [PSD or
nonattainment NSR]....” Defendants argue that this
is not what the statute says and is not what Congress
intended the statute to say. Defendants argue that
determining the adequacy of information and analyses
included in a permit application and setting the terms
and conditions of a permit are clearly not the types of
actions that could give rise to “clear cut” violations
Congress intended such as not obtaining “a permit at
all.”

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Appendix B

The Court finds that it lacks jurisdiction under
section 304(a)(3). Section 304(a)(3) allows a citizen suit
against any person who proposes to construct or
constructs any new or modified major emitting facility
without a permit required under part C. 42 U.S.C.
§ 7604(a)(3). Based on the plain language of the statute,
the Court finds that Congress intended the violation in
this provision to be proposing to construct or
constructing a facility without a permit at all (or violating
an existing permit). See Ogden Projects, 911 F Supp. at
867-68. Congress did not intend a federal CAA violation
for proceeding through the permitting process, which
would include determining the adequacy of information
and analyses proposed in the permit application and
setting the terms and conditions of the permit. The
determination of whether an entity is a polluter for
purposes of section 304 is to be made against the
objective standards in the administrative proceedings,
not in federal court. See Citizens Ass n, 535 Fd at 1322.
Congress did intend this provision to allow a federal
court in a citizen suit to force a party to get a permit if
it is going to build a major emitting air facility (or to
enforce the terms of an existing permit). Here, Oak
Grove applied for a permit, TCEQ determined that a
permit is required, and the TCEQ is now determining
whether the permit should issue and any terms and
conditions that may be necessary. Any review of the
permit and its terms and conditions would only be proper
in state court in Travis County.

Lastly, the Court distinguishes the ADEC case.
Section 113(a)(5) of the CAA authorizes EPA to bring

46a

Appendix B

an enforcement action to prohibit construction if it “finds
that a State is not acting in compliance with any
requirement or prohibition of the chapter relating to
the construction of new sources” (including the PSD
provisions). 42 U.S.C. § 7413(a)(5); see also id. § 7477
(authorizing EPA to enforce if construction does not
conform to the “requirements” of PSD). In ADEC, the
U.S. Supreme Court relied on the “any requirement”
language in sections 113(a)(5) and 167 to find that EPA
had the authority to enforce all of the individual
requirements of PSD. See ADEC, 540 U.S. at 484-85.
Thus, Congress gave the EPA broad jurisdiction to
enforce all requirements of PSD, including the
requirement to obtain a permit before construction. In
contrast, under the citizen suit provisions, Congress
gave limited jurisdiction to the violation of the
requirement to obtain a permit before commencing
construction (or for violating an existing permit).
See 42 U.S.C. § 7604(a)(3). Here, Plaintiffs are not the
EPA, they cannot step into the shoes of the EPA, and
the EPA has not joined their suit; thus, the ADEC case
is distinguishable.

D. Case or Controversy

Defendants also argue that there is no case or
controversy because Plaintiffs are seeking an advisory
opinion. They assert that any relief granted by this
Court would not be conclusive as to the issues raised
because Plaintiffs attack a mere permit application, and
it is the TCEQ that is responsible for reviewing the
application, determining its sufficiency, and issuing a

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Appendix B

permit with the terms and conditions it deems
are appropriate. See 30 Tex. Admin. Code Ann.
§§ 116.111(a)(2)(C); 116.114(a); 116.160(c); 116.160(d).
Defendants argue that even if the Court had the
jurisdiction to review the sufficiency of the permit
application and tell the TCEQ whether it is sufficient,
the TCEQ is not before this Court; thus, any decision
by the Court would be advisory.

Further, Defendants argue that Plaintiffs lack
standing. Plaintiffs state that their alleged injury is they
have “interests” in, among other things, breathing air,
enjoying outdoor recreation, scenery, and property, and
that the alleged deficiencies in the permit application
diminish these interests. Defendants assert that there
is no causal connection between the alleged injury and
the challenged conduct (c e., information contained in a
permit application), and their alleged injury is not fairly
traceable to Oak Grove’s conduct but to independent
action of the TCEQ, which is not before the Court.
Additionally, Defendants assert a claim is not redressable
if parties needing to be bound in order for the relief to
be effective are not before the Court or if the requested
relief is beyond the authority of the court. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Baca
v. King, 92 F.3d 1031, 1037 (10th Cir. 1996). Defendants
argue that the TCEQ is not before the Court, and terms
and conditions of a permit are matters within the
TCEQ’s discretion but there is no assurance that TCEQ
ultimately would issue the permit in a way that
addresses Plaintiffs’ complaints.

48a

Appendix B

Plaintiffs assert that their federal CAA claims
embody a “case or controversy.” Plaintiffs assert that
regardless of what the TCEQ decides, Defendants have
violated the law independently. Further, Plaintiffs argue
that because TCEQ might later take action regarding
Defendants’ application does not make Plaintiffs’ claims
moot or unripe. Plaintiffs assert that there is no
difficulty in fashioning a remedy because they simply
seek an injunction prohibiting Defendants from violating
emissions standards and limitations and from
constructing a facility without a permit required by
Part C.

In addition, Plaintiffs assert that they do have
standing because they allege intermediate violations that
are properly the subject of a citizen suit. These
intermediate violations concern the proposed Oak Grove
Plant, which affects the areas in which Plaintiffs live,
work, and recreate. Thus, Plaintiffs argue they have a
concrete interest in requiring Defendants to comply with
the requirements of the federal CAA, and any injury to
Plaintiffs is traceable back to Defendants’ violations of
the law. Plaintiffs argue that the CAA requirements are
not intended only to control ultimate emissions, but also
to assure that any decision to permit increased air
pollution is made only after careful intermediate
evaluation of the possible consequences. 42 U.S.C.
§ 7470(5). Plaintiffs assert that Defendants, not the
TCEQ, are responsible for the Oak Grove Plant’s
construction; thus, if the Court enjoins Defendants from
construction in violation of the law, the injury will be
redressed. They assert that joinder of TCEQ is
unnecessary to achieve that goal.

49a

Appendix B

The Court finds there is no case or controversy.
Plaintiffs are seeking an advisory opinion because this
Court is not the responsible authority for reviewing
permit applications, determining their sufficiency, and
issuing permits with the terms and conditions that are
appropriate under the law. The TCEQ has this authority,
and the TCEQ is not before this Court. Further, Plaintiffs
lack standing because there is no causal connection
between their alleged injuries and the permit
application. The Court has already held that alleged
“intermediate” violations in a permit application do not
support a federal CAA citizen suit, which supports
Plaintiffs’ lack of standing. The TCEQ has the authority
to address Plaintiffs’ concerns, not this Court.

E. Burford Abstention

Alternatively, Defendants argue that if the Court
has jurisdiction, it should abstain from exercising
jurisdiction under Burford v. Sun Oil Co., 319 U.S. 315
(1943). Burford abstention is appropriate where “timely
and adequate state court review is available and where
the exercise of federal review of the question in a case
and in similar cases would be disruptive of state efforts
to establish a coherent policy with respect to a matter
of substantial public concern.” Wilson v. Valley Elec.
Membership Corp., 8 F.3d 311, 314 (5th Cir. 1993)
(internal quotations and citations omitted). Several
factors are relevant in making this determination:
(1) whether the cause of action arises under federal or
state law; (2) whether the case requires inquiry into
unsettled issues of state law; (3) the importance of the

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Appendix B

state interest involved; (4) the state’s need for a
coherent policy in that area; and (5) the presence of a
special state forum for judicial review. Id.

Defendants argue that all of the factors weigh in
favor of Burford abstention. First, Defendants assert
that Plaintiffs’ cause of action, while asserted as a citizen
suit under the federal CAA, involves alleged violations
of state law and an attack on the state permitting
process. Defendants argue that regulation and control
of air pollution is recognized as an important state
function. 42 U.S.C. § 7401(a)(3). Second, the state needs
a coherent policy on the issues raised by Plaintiffs’ claims
because resolution of these issues may affect other
pending or proposed applications for permits for coal-
fired power plants, as well as air permitting in Texas in
general. Lastly, the TCEQ already has primary
jurisdiction for reviewing permit applications and
making the very technical determinations the Plaintiffs
are asking this Court to make. See 42 U.S.C. § 7479(3)
(BACT determination is made by the “permitting
authority”); 30 Tex. Admin. Code Ann. §§ 116.111(a)
(2)(C); 116.114(a); 116.160(c); 116.160(d). Further, a
contested case hearing before the specialized SOAH was
held in which many of the very issues before the Court
were heard. Defendants state that when the permit is
issued, Plaintiffs may sue the TCEQ in state court in
Travis County over that decision. Tex. Gov’t Code Ann.
$§ 2001.171 et seq.

Plaintiffs argue that Burford abstention does not
apply. Plaintiffs assert that their claims arise squarely

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Appendix B

under federal law, and any state laws and regulations at
issue were enacted pursuant to authority delegated from
the federal government. Plaintiffs also assert that this
case does not involve inquiry into unsettled state law or
local facts—the main dispute in this case is whether
Defendants violated the federal CAA by not providing
certain information and conducting certain analyses in
applying for permits and proposing to construct the Oak
Grove Plant. Plaintiffs further assert that clean air is
not a matter of mere local concern, and any interest in
cohesive local policy is equally served by the federal
court’s exercise of jurisdiction. Lastly, Plaintiffs argue
that there is no special state forum for judicial review
of federal CAA claims. See 42 U.S.C. § 7604(a).

Alternatively, if this Court did have jurisdiction, it
would exercise Burford abstention. While Plaintiffs style
their case as a federal CAA cause of action, the Court
finds that it attacks Defendants’ permit “application”
and is essentially a collateral attack on the Texas
permitting process. The TCEQ has jurisdiction to review
permit applications, not this Court, and if a permit
issues, Plaintiffs would file suit against the TCEQ in
state court.

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Appendix B
IV. CONCLUSION

Having heard the arguments of the parties and
reviewed the Motion, Response, Reply, pleadings, and
applicable legal authority, the Court finds that it lacks
subject matter jurisdiction over Plaintiff’s citizen suit
under sections 304(a)(1) and 304(a)(3). Further, the Court
finds that there is no case or controversy. Alternatively,
the Court finds that if it did have jurisdiction, it would
exercise Burford abstention. Defendant’s Motion To
Dismiss will be granted.

In light of the foregoing, it is

ORDERED that Defendants Oak Grove
Management Company LLC, TXU Power, a D/B/A of
TXU Generation Company LP And TXU Corp.’s Motion
To Dismiss is GRANTED. It is further

ORDERED that any and all motions or requests not
previously ruled upon by this Court are DENIED as
moot.

SIGNED on this 21* day of May, 2007.

s/ Walter S. Smith, Jr.
WALTER S. SMITH, JR.
CHIEF UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0330%3A2. Public record. Not legal advice.