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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0455%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2008

## Text

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

%
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0455%3A3. Public record. Not legal advice.