Reply Brief — National Parks Conservation Association v. Tennessee Valley Authority (No. 07-867)

MAY 36 2008

No. 07-867

OFFICE OF THE CLERK

~ SUPREME COURT, U.S. _|

IN TE :

SUPREME COURT OF THE UNITED STATES

Oe ee a eet

National Parks Conservation Association

and Sierra Club,

Petitioners,

¥

Tennessee Valley Authority,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals for the

Eleventh Circuit

PETITIONERS’ REPLY BRIEF

George E. Hays*

236 West Portal Ave. #110

San Francisco, CA 94127

(415) 566-5414

*Counsel of Record

William J. Moore, III

1648 Osceola St.

Jacksonville, FL 32204

(904) 685-2172

Michael A. Costa

3848 Sacramento St. #2

San Francisco, CA 94118

(415) 342-0042

Sean H. Donahue

2000 L St., NW Suite 808

Washington, D.C. 20036

(202) 466-2234

Reed Zars

910 Kearney St.

Laramie, WY 82070

(307) 745-7979

Counsel for Petitioners

TABLE OF CONTENTS

aes CO PART RIE EES oc ce cccicnsceas ii

SR oe ee ay cle ea a Ke eR Ck RO 1

I. The Government's Confession of Error on the

IT.

Ongoing Nature of PSD Violations Warrants

Reversal or, at a Minimum, Vacatur of the

Decision Below and Remand to the Lower

CI ee en ee saa 2

If the Court Grants Plenary Review on the

Ongoing Violation Question, It Should Also

Review the Eleventh Circuit's Erroneous

Application of the Concurrent Remedy

Doctrine and its Misreading of the CAA's

Notice Retirement. 2.0... ccc cece 9

cca wba eR Sek h as eae ae Ras 12

TABLE OF AUTHORITIES

CASES

Federal Election Commission v. Christian Coalition,

965 F. Supp. 66 (D.D.C. 1997) .......... 10

Lawrence v. Chater,

ae ers WO) hack a's bos len Cee oes 8

_ Public Interest Research Group of N.J., Inc. v.

Powell Duffryn Terminals, Inc., 913 F.2d 64

(3d Cir. 1990), cert. denied, 498 U.S. 1109

at are ara a rss Ne 9

Sierra Club v. Chevron U.S.A., Inc.,

834 F.2d 1517 (9th Cir. 1987) ........... 9

‘Stutson v. United States,

ee ee So aa ce eee ee oe 9

United States v. Ohio Edison,

276 F. Supp. 2d 829 (S.D. Ohio 2003) ..... 7

United States v. PSI Energy, Inc.,

Case No. 1:99-cv-1963-LJM-JMS ......... 7

United States v. S. Indiana Gas and Elec. Co.,

245 F. Supp. 2d 994 (S.D. Ind. 2003) ...... 7

United States v. Telluride,

146 F.3d 1241 (10th Cir. 1998) ......... 10

il

STATUTES

8 MRE Nea ae tree a Manan rarergran args 1

ee sa ik ns wns eww bie oa 8

Me Ge, BPD) gc cee cee cece os tneees 3

42 U.S.C. 9 TOGHONS) ... we res 3

MRS © PU) oe se se cece cence eas s 3

ADMINISTRATIVE MATERIALS

ee EES ikea ccs pede vse cbse Fi-0s 7

er 8 ak hw os cee he ew eeu s 11

Alabama State Implementation Plan (SIP) Alabama

Air Pollution Control Commission (AAPCC)

Reg. 16.1.1 Types of Permits (1979) .... 4,5

Alabama State Implementation Plan (SIP) Alabama

Air Pollution Control Commission (AAPCC)

TE Be CE oe ko yee Pa eae ees 5

Alabama State Implementation Plan (SIP)

Ala. Admin. Code Rule 335-3-14-.04

RM i aaa RO ie gas 7

Tennessee State Implementation Plan (SIP)

Tenn. Comp. R. & Regs. § 1200-3-9-.01 .... 7

ill

OTHER AUTHORITIES

Robert L. Stern, et al.

SUPREME COURT PRACTICE (8th ed. 2002) .. 9

iv

ARGUMENT

The petition showed that the court of appeals

erred in concluding that petitioners’ claims for relief in

this Clean Air Act citizen enforcement action were

barred under 28 U.S.C. 2462. As other courts have

held, the obligation to obtain a permit under the

Prevention of Significant Program is ongoing during

the operation of a facility and is not somehow waived

if the operator unlawfully constructs a project without

a permit. The petition also showed that the court of

appeals erred in any event by applying the “concurrent

remedy” doctrine to invent a time-bar governing

equitable relief and by holding petitioners’ statutory

notice inadequate as to their NSPS claims.

<The brief in opposition — reconciling “competing

views within the federal government,” Opp. 9 n.4 —

unveils an abrupt about-face from the position

respondent urged throughout the lengthy proceedings

in the lower courts. Much of brief (Opp. 9-19) is

devoted to new arguments, similar to petitioners’

arguments throughout this case, that the PSD statute

and applicable regulations impose ongoing obligations

that may be enforced even after the unlawful

“construction” has taken place.

Having urged just the opposite position below,

respondent now acknowledges that the Eleventh

Circuit’s ruling was deeply flawed. Thus, it now

concedes that the court of appeals “misunderstood a

number of features” of the Alabama SIP and of the

“CAA scheme in which they operated” and that the

“court’s conclusion that these provisions did not create

an ongoing obligation to comply” was “erroneous.”

Opp. 9.

The Government’s confession of error implicates

not just the reasoning of the Eleventh Circuit, but also

%

nil

Gee.

its judgment. Had the court of appeals accepted the

position urged by petitioners — which, with the filing

of the Opposition, has now become the “unified position

of the federal government as a whole” (Opp. 9) — the

court of appeals would have been obligated to remand

the case to the district court to address the merits.

I

The Government’s Confession of Error on the

Ongoing Nature of PSD Violations Warrants

Reversal or, at a Minimum, Vacatur of the

Decision Below and Remand to the Lower

Courts

The government’s current position -- that PSD

permit obligations are ongoing and enforceable --

represents a dramatic change frqm the position TVA

took below. In the court below, TVA broadly argued

petitioners claims were time-barred because “the

relevant act prohibited [by the NSKR provisions] is

construction, not operation.” Doc. 100, at 23 (emphasis

in original). Now, the government correctly

acknowledges that “{t]he PSD provisions are by their

terms ongoing requirements applicable to the operation

of major emitting facilities.” (Opp. 14) (emphasis

added). Also below, TVA made the broad assertion

that the Clean Air Act “allows citizens to sue about

construction of a new or modified plant without a

permit, not about the later operation of that newly

constructed or modified plant.” Doc. 100, at 25

(emphasis in original). The Government’s Brief in

Opposition directly contradicts TVA’s earlier position,

which the court below adopted:

2

The court of appeals found that distinct language

of the citizen suit provision, 42 U.S.C.

7604(a)(3), . . . signaled that Congress did not

intend to allow suits based on ongoing violations

during a facility’s operation. Pet. App. 13a. To the

contrary, 42 U.S.C. 7604(a)(1) provides precisely

that remedy, as the definition contained in 42

U.S.C. 7604(f)(4) makes clear.

Opp., 16 n. 9. The two opposite positions taken by the

Government in this case are reflective of the division

among the lower courts over whether PSD permit and

BACT obligations are enforceable after construction.

See Pet. 17-18, 23-24.

Despite spending many pages documenting the

court of appeals’ many and fundamental errors, the

Government nonetheless recommends (Opp.19-21)

that the Court let the decision stand. But the reasons

given are insubstantial. Having gone on at length

about ways in which the Eleventh Circuit’s analysis

was fundamentally flawed, the Government’s efforts to

downplay the decision’s inconsistency with the Sixth

Circuit’s analysis are tellingly strained. Thus, for

example, the Government suggests the absence of a

’ “direct” conflict between decision below and Sixth

Circuit because the Eleventh Circuit’s opinion “appears

to be tainted by its misunderstanding of SIP and PSD

operational requirements and the relationship between

the PSD and Title V programs” and because the

decision below “may also have been tied” to its

misreading of Alabama implementation plan. Opp. 21.

Given the inter-agency disagreement this case

implicates, it is not surprising that the Government —

having deliberated for five months over its Brief in

Opposition — seeks to minimize the Eleventh Circuit’s

decision as a “narrow holding” involving a “particular

provision of a single State’s implementation plan.”

Opp. 20. But as the Government’s own brief elsewhere

demonstrates, the Eleventh Circuit’s reasoning swept

broadly, and rested upon a basic misunderstanding of

the fundamentals of the relevant statutory scheme.

See, e.g., Opp. at 16 (court of appeals “misperceived

the framework of the CAA”). As demonstrated in our

petition, the question whether violations of PSD

permitting requirements represent ongoing violations

that may be remedied so long as the violations

continue has generated significant disagreement

among the lower courts (and “competing views” within

the federal government, see Opp. 9 n.4).

The government’s reasons for denying “further” _

review (Opp. 9) of a case in which it has just now

reversed its position ring decidedly hollow. First, the

Government suggests that petitioners are partly to

blame for the Eleventh Circuit’s errors because our

briefs did not discuss Section 16.1.1 of the pre-1985

Alabama regulations. In fact it was TVA that led the

court below astray by making the following erroneous

argument regarding the pre-1985 regulations:

[T]he PSD and NNSR regulatory programs

specifically forbid only unpermitted construction.

Alabama's PSD regulations are entitled "Permits

to Construct in Clean Air Areas," and provide that

"{nlo . . . major modification shall begin actual

constructivun" without complying with the

regulation's requirements. AAPCC Regulation

16.4.8(a) (Add. at A-5, A-14). Similarly, Alabama's

NNSR regulations are entitled "Permits to

Construct in or near Nonattainment Areas," and

impose certain requirements that must be satisfied

before a "Permit to Construct shall be issued to a

person proposing to construct or make a major

modification to a major facility." AAPCC

Regulation 16.3.2(c) (Add. at A-26, A-29). Both

these Alabama programs are preconstruction

permit programs and not operating permit

programs.

Doc. 100, at 24 (footnote omitted). In this Court,

however, the Government concedes (Opp. 11) that:

In reality * * * the Alabama SIP provisions in

effect at the time of the alleged modifications in

this case did contair provisions imposing an

ongoing obligation to comply with PSD

requirements.

In the courts below, petitioners were quite clear that it

was never legal for TVA to be operating without a

permit coverning the modification. See Appellants’ 11"

Cir. Brief at 28.’ Furthermore, because the issue is

whether TVA’s current operations are violating the

law, petitioners properly focused their briefing upon

demonstrating that TVA’s conduct in continuing to

operate equipment for which no PSD permit was

granted violates the currently binding SIP language.

E.g., Appellants’ 11th Cir. Reply Brief at 3-6.

Moreover, petitioners’ briefing in the Eleventh Circuit,

' Petitioners discussed Section 16.1.1 in the petition (Pet.,

21-22) in order to address the Eleventh Circuit's effort to

distinguish its decision from the Sixth Circuit's decision. See Pet.,

18a-19a (Eleventh Circuit’s erroneous assertion that the

Tennessee SIP contains provision to address sources who had

undertaken unpermitted modifications, but the Alabama SIP did

not). Petitioners never had an opportunity to brief fully the

import of the Sixth Circuit decision because it came down after

the Eleventh Circuit briefs in this case were filed.

5

see 11" Cir. Brief at 30-32, stressed that the language

and structure of the Clean Air Act’s NSR’s provisions

unambiguously apply on an ongoing basis — the same

point now made at length by the Government. Opp.

13-18. The Court should reject the Government’s

efforts to cast off responsibility for an Eleventh Circuit

ruling that tracked the confessedly erroneous legal

arguments it advanced below.

Nor should the Court credit the Government’s

effort to limit the significance of the Eleventh Circuit’s

decision. One illustration of the decision’s importance

is Alabama Power’s amicus brief, which asserts that

the Eleventh Circuit’s decision was correct and defends

many of the same erroneous arguments (e.g. PSD

permits focus on construction, not operation, see

Amicus Br. 9) made in a number of incorrect district

court decisions that have examined this issue. Pet.

14.2 If the decision below is left standing, other

defendants will follow Alabama Power’s lead and

argue that it was the Eleventh Circuit, not the Sixth,

that got it right. This is particularly true with respect

? Alabama Power challenges petitioners’ standing. Amicus

Br. 15-17. The challenge is groundless. In the district court,

plaintiffs moved for summary judgment, demonstrating that

plaintiffs’ members are injured by the dark smoke coming from

TVA’s stack and from poor visibility in the area where the plant

is located. Doc. 177, at 15-24. Plaintiffs also submitted direct and

expert testimony showing that TVA’s alleged violations are

related to those injuries, id. and that successful resolution of the

case will redress those injuries. Jd. at 24-28. The district court

granted plaintiffs summary judgment on standing, a ruling that

TVA did not appeal. While Article III standing questions may be

raised at any time, that is not a license to advance frivolous

standing challenges in an effort to influence the exercise of this

Court’s discretionary jurisdiction.

6

to the question of whether, as the Sixth Circuit found,

the requirement for modified sources to have BACT

emission limitations is a freestanding, ongoing

obligation. See Pet. 23-24. Alabama Power’s erroneous

arguments (Br. 11-12) would apply to any state’s PSD

rule that tracks the federal provision, 40 C.F.R. §

52.21(j). Compare 40 C.F.R. § 52.21) (federal BACT

provision) with Ala. Admin Code 335-3-14-.04(9)(c),

App. 180a, and Tenn. Comp. R.& Regs. §

1200-3-9-.01(1)(e). Particularly given the Government’s

confession of error, Alabama Power’s arguments in

defense of the decision below tend to strengthen the

case for this Court’s review.

The government’s suggestion (Opp. 22 n. 13) that

the statute of limitations issues raised in this case will

be sorted out in the future through enforcement

actions brought by EPA is also groundless. The

argument is belied, among other reasons, by the glacial

pace at which these mammoth Clean Air Act

enforcement actions have moved through the system.°*

Both this case and the companion Sixth Circuit case

were filed in 2001. A similar NSR enforcement action

brought by the government against Cincinnati Gas &

Electric company, filed in 1999, just went to trial this

month. See United States v. PSI Energy, Inc., Case No.

1:99-cv-1963-LJM-JMS. Waiting for further

“percolation” of issues that are already confounding the

courts and dividing federal agencies is particularly

undesirable for cases that take years and massive

3 Por illustrations of the massive scope of these NSR

enforcement actions, see United States v. Ohio Edison, 276 F.

Supp. 2d 829 (S.D. Ohio 2003); United States v. S. Indiana Gas

and Elec. Co., 245 F. Supp. 2d 994 (S.D. Ind. 2003).

7

resources to investigate and litigate.

The Government’s suggestion that this Court

overlook the errors below is also surprising given the

enormous environmental and public health significance

of the alleged modifications at issue in this case See

Opp. 5. For example, Unit 5 at Colbert, because it has

no relevant pollution controls, emitted a staggering

35,000 tons of sulfur dioxide in 2003. Pet.9. By way

of comparison, the Clean Air Act defines a “major

source” as one emitting at least 100 tons a year, 42

U.S.C. § 7479. If petitioners prevail in this case, the

new emission limits imposed for this facility will

reduce the plant’s sulfur dioxide emissions by over 90

percent. See Pet. 6. Allowing this erroneous decision to

stand would not only leave in place a fundamentally

flawed judgment based upon legal theories the

Government now acknowledges to be incorrect, but

would also allow the subject facilities to continue to

emit air pollutants at levels that threaten public

health and welfare.

The Government’s position that the Court should

leave the acknowledged and fundamental errors of the

lower court unremedied becomes all the more peculiar

— and redolent of a jury-rigged compromise between

competing federal agencies — when one recalls that

EPA itself identified the facility at issue as warranting

enforcement action, see Opp. 4, and that, as the

Opposition acknowledges, “TVA has a degree of

insulation from enforcement by EPA.” Opp. 22 n.13.

Given the importance of this case; and the mischief

that will ensue if the Eleventh Circuit’s decision is

allowed to stand; and the Government’s thoroughly-

explained confession of error, this case is ripe for

summary disposition under Rule 16.1. The Eleventh

Circuit’s judgment should be summarily reversed, and

the case remanded for further proceedings. If the

Court concludes, however, that the Eleventh Circuit’s

analysis — now defended only in Alabama Power’s

amicus brief — merits further consideration, then the

Court should grant plenary review.

At a minimum, the Solicitor General’s confession

of error on a matter essential to the judgment merits

vacatur of the decision below and remand for the lower

court to consider the United States’ (and perforce

TVA’s) new position. See, e.g., Lawrence v. Chater,

516 U.S. 163, 167 (1996) (citing cases in which this

Court has granted, vacated and remanded in light of

“confessions of error or other positions newly taken by

the Solicitor General”); Stutson v. United States, 516

U.S. 163, 183 (1996) (noting that practice of GVRing

upon confession of error by the Solicitor General is

“well entrenched”) (Scalia, J., dissenting); Robert L.

Stern, et al. SUPREME COURT PRACTICE at 317-18 (8"

ed. 2002) (citing other cases in which court has

“GVR’d” based upon confessions of error or changes of

position by the Solicitor General).

II

If the Court Grants Plenary Review on the Ongoing

Violation Question, it Should Also Review the

Eleventh Circuit’s Erroneous Application of the

Concurrent Remedy Doctrine and its Misreading of

the CAA’s Notice Requirement

If the Court grants review and sets this matter for

full consideration, then the concurrent remedy issue

should also be considered. (The issue would need to be

addresssed only if the Court were conclude, like the

Eleventh Circuit, that the violations here were not

ongoing).

The government’s argument that the Eleventh

Circuit’s decision could be upheld through a

“borrowing” analysis is incorrect. Opp. 24. The

government failed to identify any statute that could be

“borrowed” that would bar petitioners’ claims for

injunctive relief. The cases cited by the Government

are also inapposite.* Indeed, the Government’s

“borrowing” point is contradicted by its own brief (Opp.

18), which analogizes petitioners’ claims to temporary

nuisance claims, claims not subject to statutes of

limitations. See Pet. 31.

In United States v. Telluride, 146 F.3d 1241 (10™

Cir. 1998), cited at Opp. 26, the government

successfully urged the very same argument regarding

the inapplicability of the concurrent remedy doctrine

that petitioners advance here. See Brief of Petitioner-

Appellant in No. 97-1236 at 27-39 (10 Cir. Sept. 2,

1997). Under the government’s argument in Telluride,

the concurrent remedy doctrine would not bar

injunctive relief regardless of whether the plaintiff is

the United States or a private attorney general.

Accordingly, given the Eleventh Circuit’s failure to

follow the precedents of this Court in applying the

concurrent remedy doctrine, and given that its

“L The two cases cited in the Government's brief, Public

Interest Research Group of N.J., Inc. v. Powell Duffrvn Terminals,

Inc., 913 F.2d 64, 74-75 (3d Cir. 1990), cert. denied, 498 U.S. 1109

(1991); and Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517,

1520-1521 (9th Cir. 1987), have nothing to do with applying a

limitations period to bar claims for injunctive relief.

10

incorrect analysis could be applied to any action for

injunctive relief, see, e.g., Federal Election Commission

v. Christian Coalition, 965 F. Supp. 66, 70-72 (D.D.C.

1997), review should be granted.

Finally, if the Court grants plenary consideration,

it should grant review of the Eleventh Circuit’s ruling

upholding the dismissal of petitioners NSPS claims for

alleged inadequacy of notice. While perhaps not

independently cert-worthy, the issue is of enormous

practical significance. Here, in the notice letter,

plaintiffs stated their good-faith belief that TVA, which

to this day refuses to acknowledge that Colbert Unit 5

is even subject to NSPS regulations, was violating all

of the requirements of Subpart Da. Plaintiffs

complaint matched the notice letter in this regard.

Subsequently, during the course of discovery, plaintiffs

learned that Colbert 5 is managing to comply with

some Subpart Da requirements, though it has never

complied with the sulfur dioxide control requirements.

The Eleventh Circuit’s ruling goes far beyond the scope

of the regulations, which only requires that a

defendant be given sufficient notice from which

sufficient information to permit the recipient to

identify the specific standard, limitation, or order

which has allegedly been violated. 40 C.F.R § 54.3.

The regulations are not so hyper-technical that they

require a claim to be dismissed because plaintiffs

made a good-faith error regarding the scope of a

defendant’s violations -— errors that are almost

inevitable for private plaintiffs with little or no access

to the alleged violators facilities and emissions

information.

11

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

George E. Hays* Sean H. Donahue

236 West Portal Ave. #110 2000 L St., NW #808

San Francisco, CA 94127 Washington, D.C. 20036

(415) 566-5414 (202) 466-2234

William J. Moore, ITI Reed Zars

1648 Osceola St. 910 Kearney St.

Jacksonville, FL 32204 Laramie, WY 82070

(904) 685-2172 (307) 745-7979

Michael A. Costa

3848 Sacramento St. #2

San Francisco, CA 94118

(415) 342-0042

*Counsel of Record Counsel for Petitioners

12