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

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No. 07-867 ; Fil ED

Bes MAY 23 2008

Supreme Court of the Anited : OE CLERK

NATIONAL PARKS CONSERVATION ASSOCIATION, e¢ al.,

Petitioners,

Vv.

TENNESSEE VALLEY AUTHORITY,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF AMICUS CURIAE

ALABAMA POWER COMPANY IN SUPPORT

OF TENNESSEE VALLEY AUTHORITY

KARL R. MOOR MICHAEL D. FREEMAN

SOUTHERN COMPANY Counsel of Record

Bin $C1201, 12th Floor STEVEN G. MCKINNEY

30 Ivan Allen, Jr. Blvd... NW P. STEPHEN GIDIERE Il

Atlanta, Georgia 30308 BALCH & BINGHAM LLP

(404) 506-0853 1901 Sixth Avenue North

Suite 1500

DANIEL S. REINHARDT Birmingham, Alabama 35203

MARGARET C. CAMPBELL (205) 251-8100

TROUTMAN SANDERS LLP

600 Peachtree Street

Suite 5200

Atlanta, Georgia 30308

(404) 885-3000

Counsel for Amicus Curiae

WILSON-EPES PRINTING CO., INC. — (202) 789-0086 -— WASHINGTON, D. C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...............--ssssssssssceees ili

INTERESTS OF AMICUS CURIAE ...............++. 1

STATUTORY AND REGULATORY PRO-

PEGE BE WTEC Mii siindenssnnnnannendécctececasacees 4

SUMMARY OF THE ARGUMENT .................... +

REASONS FOR DENYING THE PETITION .... 5

I. THERE IS NO SPLIT IN THE CIR-

CUITS OR IMPORTANT QUESTION

OF FEDERAL LAW WARRANTING

CFEo aA BPR scnenvacephiandacesaaiaioeanamanbsnnenss 5

II. THE COURT OF APPEALS COR-

RECTLY APPLIED THE ALABAMA

Ill. THE COURT OF APPEALS’ APPLI-

CATION OF THE CONCURRENT

REMEDY DOCTRINE AND THE PRE-

SUIT NOTICE REQUIREMENT DOES

NOT WARRANT FURTHER REVIEW ... 14

IV. PETITIONERS HAVE A STANDING

POU TAMIINE tii as-xassd nictedmrseceeeectunmalaoanene 15

CR IIE iiakciicinsnsus dniackahvedendanorcedaiseeaauamaiila 18

PI i vsvcsisccssisisnsniceiractceetaee ieee la

Ala. Air Pollution Control Comm’n Reg.

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Ala. Air Pollution Control Comm’n Reg.

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Ala. Air Pollution Control Comm’n Reg.

ED ovicccccicccctcccictinsganaecadaeaee 4a

ii

TABLE OF CONTENTS—Continued

Page

Ala. Air Pollution Control Comm’n Reg.

TIED sissies hiidelssaciunsiidnaanadeiibiapeniaipeateasaidancgie 5a

Ala. Admin. Code r. 335-3-14-.04(2){1) ............ 7a

Ala. Admin. Code r. 335-3-14-.04(8)(a)............ 9a

Ala. Admin. Code r. 335-3-14-.04(12)(a).......... 10a

ill

TABLE OF AUTHORITIES

CASES Page

Alabama Power Co. v. Costle, 636 F.2d 323

CEPA a, MAN PND nicinccttandinsdlanaimnonniitivahiaceswans 7

Alaska Department of Environmental

Conservation v. Environmental Protec-

tion Agency, 540 U.S. 461 (2004)............. 7, 8,13

Burnett v. New York Central Railroad Co.,

SOD BFE re Ca icrcinedinntntnhadinnisdicccensess 13

Coghlan v. National Transportation Board,

470 F.3d 1300 (11th Cir. 2006)................. 14

Cope v. Anderson, 331 U.S. 461 (1947)........ 15

Environmental Defense v. Duke Energy

Corp., 127 S. Ct. 1423 (20G07).....2..c0.00cce00s. 7,9

Federal Election Commission v. Williams,

104 F.3d 237 (9th Cir. 1996)..................... 15

Johnson v. Securities & Exchange Com-

mission, 87 F.3d 484 (D.C. Cir. 1996)...... 14

Leavitt v. Tennessee Valley Authority, 541

tls ik ditsitninrcnkitimintsatniscneseiscsnane 2

Lujan v. Defenders of Wildlife, 504 U.S.

I a SE ei isicicnicibieddcdicisscpcatuccsnaiianatisncce 16, 17

National Ass’n of Home Builders ov.

Defenders of Wildlife, 127 S. Ct. 2518

National Parks Conservation Ass’n ov.

Tennessee Valley Authority, 480 F.3d

Sa re es Se ies ha intcttrntabedcditiersecs: 5, 6

Sierra Club v. Tennessee Valley Authority,

430 F.3d 1337 (11th Cir. 2005)................. 16

Tennessee Valley Authority v. Environ-

mental Protection Agency, 278 F.3d 1184

3. SR | RATERRE Ne Seen eee Ee Oe np ann 2,3

Tennessee Valley Authority v. Whitman,

336 F.3d 1236 (11th Cir. 2003)................. 2

1V

TABLES OF AUTHORITIES—Continued

Page

Train v. Natural Resources Defense

Council, Inc., 421 U.S. 60 (1975).............. 7

United States v. AM General Corp., 34

poo re ge. 2t. Sy.” | eee epereennnaeee 11

United States v. East Kentucky Power Co- |

Op, Inc., 498 F. Supp. 2d 970 (E.D. Ky.

IE ath cba iik agai Coa cnscinakai uh dnisdindacdansedediidasanes 6

DOCKETED CASES

United States v. Alabama Power Co., No.

2:01-cv-00152-VEH (N.D. Ala.) ................ 3

STATUTES

I aa iiss ccxcinaannorseascucsdcan 3

ee ns cccnsnadnccuvcncassdocddannkekhus passim

A Ae PIED va cacsnsscassndsonsenaseanansace 7

Re I I cncckssistcnasidscsssesivasctacsdesanne 7

A ic acnsasncnssassecdencssensendaaeancs 7

A ee PE Pikinnvccdedccacnsssasiassnionscesseiens 7

EE PROD odcessissvassicesccsevenacsanseees 8

Fe a FU vivtcas cccvicnsaccsscctansccccnectansses 9,11

We I oicieicksccdtscatecesnncninscsnsisavensene 10

ihe cos csissencieasesscepdccnacneccnasc 12

ET ee Pinar ciccnncnatescsscievesesacecsces 9,10

ee PD vince cacaseccnsiccccctecdscsecesss 11

REGULATIONS

i Oe PN dass cnan ccnp taiecdcdesacsnsddiasncensn 3

37 Fed. Reg. 10,842 (May 31, 1972)............. 8

46 Fed. Reg. 55,517 (Nov. 10, 1981)............ 8

50 Fed. Reg. 7,777 (Feb. 26, 1985)............... 8

Vv

TABLES OF AUTHORITIES—Continued

Page

Ala. Air Pollution Control Comm’n Reg.

PN staid nt Akins sdinsiaeeridy kchiisca xadntecnenbcceties 12,13

Ala. Air Pollution Control Comm’n Reg.

iors nasiescabecauntudahsosenbes 12

Ala. Air Pollution Control Comm’n Reg.

a i Lk ca cads Ol aiesinesens 12

Ala. Air Pollution Control Comm’n Reg.

aii tecReidcdadannicaxakacbaccbdissansteccsces 12

Ala. Admin. Code r. 335-3-1-.02(1)(tt) ......... 16

Ala. Admin. Code r. 335-3-14-.01(1)(a)........ 10, 11

Ala. Admin. Code r. 335-3-14-.01(1)(c) ........ 10

Ala. Admin. Code r. 335-3-14-.04(1)(b)........ 11

Ala. Admin. Code r. 335-3-14-.04(2)(])......... 13, i3

Ala. Admin. Code r. 335-3-14-.04(8)(a)........ 12

Ala. Admin. Code r. 335-3-14-.04(9)(c) ........ 12

Ala. Admin. Code r. 335-3-14-.04(12)(a)...... 13

Tenn. Comp. R. & Regs. § 1200-3-9-

ers cic cksssdncksnscecavsisdeiasaacecesons 6

OTHER AUTHORITIES

SI I OED ici ccnsccesssansscsccnsccevsenenssconces 8

TI TE ND oo ssn sa scccnscseseadcecassnedessocesecers

5

I, BE Rininssksnescseressascscisscarees enidaes 5

IN THE

Supreme Court of the Gnited States

No. 07-867

NATIONAL PARKS CONSERVATION ASSOCIATION, ef al.,

Petitioners,

v.

TENNESSEE VALLEY AUTHORITY,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF AMICUS CURIAE

ALABAMA POWER COMPANY IN SUPPORT

OF TENNESSEE VALLEY AUTHORITY

INTERESTS OF AMICUS CURIAE

Alabama Power Company (“Alabama Power”) sup-

plies power to more than 1.3 million homes and busi-

nesses in the southern two-thirds of Alabama.’ Its

‘ The parties have consented to the filing of this brief.

Counsel of record for all parties received notice at least 10 days

prior to the due date of Alabama Power’s intention to file this

brief. No counsel for a party authored this brief in whole or in

part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than amicus curiae, its members, or its counsel

made a monetary contribution to its preparation or submission.

2

power generation and transmission system is inter-

connected with the Tennessee Valley Authority (“TVA”)

system in northern Alabama. This interconnection

allows for the exchange of power between the two sys-

tems and provides economic and reliability benefits,

such as the ability to respond to emergency condi-

tions.

The specific allegations raised in this case were first

made against TVA by the United States Envi-

ronmental Protection Agency (“EPA”) in 1999 by way

of an Administrative Compliance Order (“ACO”). At

that time, TVA, Alabama Power, and others filed

petitions for review in the United States Court of

Appeals for the Eleventh Circuit challenging the

ACO. Tenn. Valley Auth. v. Envtl. Prot. Agency, 278

F.3d 1184, 1205-07 (11th Cir. 2002). The court of

appeals held that Alabama Power had standing to

challenge the ACO because of “the interconnectedness

of their electric transmission networks with TVA’s.” Id.

at 1206. On the merits, the court of appeals found

the ACO to be “legally inconsequential” and held that

TVA was “free to ignore the ACO without risking the

imposition of penalties for noncompliance with its

terms.” Tenn. Valley Auth. v. Whitman, 336 F.3d

1236, 1240 (11th Cir. 2003). When a petition for writ

of certiorari was filed, Alabama Power was among

the parties that urged this Court to deny the petition,

which it did. Leavitt v. Tenn. Valley Auth., 541 U.S.

1030 (2004). When Petitioners here filed this citizen

suit parroting the allegations in EPA’s earlier ACO,

Alabama Power again participated to protect its in-

terests, this time as amicus curiae at the court of

appeals.

In addition to these interests, Alabama Power itself

operates coal-fired power plants in Alabama and is a

3

defendant in a case pending in the United States

District Court for the Northern District of Alabama

involving allegations similar to those here. United

States v. Ala. Power Co., No. 2:01-cv-00152-VEH (N.D.

Ala.). In that case (filed in 2001), EPA alleges that

Alabama Power made “major modifications” to four of

its facilities, the last of which allegedly commenced in

1993, outside the five-year statute of limitations at

issue in this case. As here, EPA does not allege that

Alabama Power is violating or has violated any of the

emission limitations in its state-issued operating per-

mits, only that Alabama Power should have sought

pre-construction permits from the state of Alabama

prior to starting the work in question. Thus, the

same Alabama regulations at issue here are at issue

in the case against Alabama Power, and the court of

appeals’ ruling is of significant interest to Alabama

Power.

Finally, Alabama Power respectfully submits that

this amicus curiae brief is particularly important

given TVA’s unique independent status and the

Department of Justice’s role in practice before this

Court. Although TVA represented itself and

presented its position in the proceedings below based

on its independent litigating authority,’ Alabama

Power understands that TVA has been prevented by

the Department of Justice from continuing to do so in

this case and that the Solicitor General will instead

file a brief in response to the petition.* This will

likely result in some change of the position presented

on behalf of TVA. While Alabama Power does not

know what arguments the Department of Justice will

* See Tenn. Valley Auth., 278 F.3d at 1193-98.

* See 28 U.S.C. § 518(a); 28 C.F.R. § 9.20(a).

4

make in response to the petition, this inter-agency

process will likely dilute the adversarial nature of

this case, making this amicus curiae brief essential to

sharpening the presentation of the issues to this

Court.

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

In the appendix to their petition, Petitioners include

some of the relevant provisions of the Alabama State

Implementation Plan (“SIP”) but fail to include others.

Additional relevant provisions of the Alabama SIP are

included in an appendix to this brief and are cited

herein.

SUMMARY OF THE ARGUMENT

There is no “split” between the Eleventh and Sixth

Circuits regarding the five-year statute of limitations

in 28 U.S.C. § 2462. Those two circuits reached differ-

ent results in separate cases involving TVA because

of differences in the underlying state laws, not be-

cause of any disagreement on an overarching issue of

federal law. Further, the Eleventh Circuit correctly

applied 28 U.S.C. § 2462 to Petitioners’ claims alleg-

ing violations of the Alabama SIP in connection with

work TVA performed in 1982 and 1983. Petitioners’

remaining arguments for review—that the court of

appeals somehow erred in applying the concurrent

remedy doctrine and the pre-suit notice require-

ment—also involve no conflict among the circuits nor

any important issue of federal law. Finally, there are

unresolved issues with respect to Petitioners’ standing

that would complicate review by this Court.

5

REASONS FOR DENYING THE PETITION

I. THERE IS NO SPLIT IN THE CIRCUITS

OR IMPORTANT QUESTION OF FEDERAL

LAW WARRANTING CERTIORARI

Petitioners seek review by this Court to correct what

they see as a “widespread, disparate, and often erro-

neous application of 28 U.S.C. § 2462 in environ-

mental enforcement cases,” which they say is reflected

in a “split between the Sixth and Eleventh Circuits.”

Pet. at 13 (capitalization omitted). This so-called

“split” is based on Petitioners’ comparison of the Elev-

enth Circuit’s decision here with the earlier decision

of the Sixth Circuit in National Parks Conservation

Association v. Tennessee Valley Authority, 480 F.3d

410 (6th Cir. 2007). Id. These two circuits’ decisions,

however, interpreted and applied different state laws

that led those courts to different outcomes. There

simply is no split “on the same important matter” and

no “important question of federal law” justifying this

Court’s review. Sup. Ct. R. 10(a), (c).

Indeed, the Eleventh and Sixth Circuits actually

agreed on the overarching federal issue—i.e., whether

the five-year statute of limitations in 28 U.S.C. § 2462

applied to the alleged SIP violations before them.

Nat'l Parks Conservation Ass’n, 480 F.3d at 416 (“We

hold that § 2462’s five-year statute of limitations

applies.”); Pet. App. at lla (“Legal claims brought

under the Clean Air Act are subject to the general

federal five-year statute of limitations established by

28 U.S.C. § 2462 ....”). The different outcomes in

the two cases were driven by differing aspects of the

Alabama and Tennessee SIPs. The Sixth Circuit

found that the Tennessee SIP imposed on sources

“an ongoing duty to ensure that they obtain the

appropriate emissions limitations in their con-

6

struction permits, even if they failed to do so before

construction.” Natl Parks Conservation Ass’n, 480

F.3d at 413 (citing Tenn. Comp. R. & Regs. § 1200-3-

9-01(1)(e)). Conversely, the Eleventh Circuit found

that the Alabama SIP contained no “analogous pro-

vision” and that “f{uJnlike Tennessee, Alabama

limited the obligation to apply Best Available Control

Technology to proposed modifications, with no caveat

continuing the obligation for the operating life of

the source if it was not met during the construction

phase.” Pet. App. at 19a; see also id. at 17a (“A

careful review of Alabama’s preconstruction permit-

ting program reveals that Best Available Control

Technology was to be determined and installed at

the time of construction.”) (emphasis added). This

“important difference in the states’ plans,” the

Eleventh Circuit concluded, “ultimately precludes us

from reaching the same result as our sister circuit.”

Id. at 18a-19a.*

* Petitioners also point to different results in district court

cases, some involving SIP claims and some not. Pet. 13-14. But

it is well understood by district courts, and requires no

clarification from this Court, that the application of 28 U.S.C.

§ 2462 in the context of a SIP claim requires an analysis of the

underlying SIP that is alleged to have been violated. For

example, after the Sixth Circuit’s decision, the United States

District Court for the Eastern District of Kentucky addressed

the application of 28 U.S.C. § 2462 to alleged violations of the

Kentucky SIP. United States v. East Ky. Power Co-Op, Inc., 498

F. Supp. 2d 970 (E.D.Ky. 2007). The district court there had no

difficulty applying the same well-established principles applied

by the Sixth Circuit and the Eleventh Circuit to the specific

provisions of the Kentucky SIP. Jd. at 974-75. Petitioners do

not cite the East Kentucky Power decision in their litany of

district court decisions on 28 U.S.C. § 2462. Pet. at 13-14. The

decision underscores the state-specific nature of the inquiry

when the underlying claim is based on a SIP and the fact that

7

That Alabama and Tennessee take a somewhat

different approach to construction permitting under

their respective SIPs is entirely consistent with the

cooperative federalism approach adopted by Congress

in the Clean Air Act. Under the Act, Congress gave

the states the primary responsibility of regulating air

pollution from facilities within their borders. See 42

U.S.C. § 7401(a)(3) (“Air pollution prevention .. . is

the primary responsibility of States and local govern-

ments.”); id. § 7407(a) (“Each State shall have the

primary responsibility for assuring air quality within

the entire geographic area comprising such State.”).

While EPA’s job is to promulgate air quality stan-

dards for certain pollutants and to ensure that the

minimum requirements for control programs are met,

id. § 7409, the states are responsible for deciding how

to achieve those standards and requirements within

their own borders through EPA-approved SIPs. Id.

§ 7410(a); Envtl. Def. v. Duke Energy Corp., 127 S. Ct.

1423, 1428 (2007) (“The Clean Air Act Amendments

of 1970 . . . directed EPA to devise National Ambient

Air Quality Standards (NAAQS) limiting various pol-

lutants, which the States were obliged to implement

and enforce .. . .”); Train v. Natural Res. Def. Council,

Inc., 421 U.S. 60, 78-79 (1975). The statutory New

Source Review (“NSR”) program adopted by Congress

in 1977 continued the basic cooperative federalism ap-

proach in the Act. See Ala. Power Co. v. Costle, 636

F.2d 323, 349-51 (D.C. Cir. 1980) (“The 1977 Amend-

ments maintain the basic structure of regulation of

stationary sources through state plans.”); cf. Alaska

Dep't of Envtl. Conservation v. Envtl. Prot. Agency,

540 U.S. 461, 491 (2004) (describing the PSD program

no further review is warranted with respect to the Eleventh

Circuit’s analysis of the particulars of the Alabama SIP.

8

as a regulatory “scheme that ‘places primary respon-

sibilities and authority with the States, backed by the

Federal Government.” (quoting S. Rep. No. 95-127,

p. 29)).

In accordance with this congressional intent, Alabama

and Tennessee have fulfilled their cooperative roles.

Both states have adopted SIPs, which were approved

by EPA.® Both of those SIPs meet the minimum fed-

eral requirements, but (key to this case) they are not

identical. The federal courts of appeals with jurisdic-

tion for each state have interpreted the pre-construc-

tion permitting provisions of each SIP vis-a-vis 28

U.S.C. § 2462 and have reached different results based

on the differences in those SIPs. This is not a conflict;

it is how Congress designed the process. If Petition-

ers believe that differences in the Alabama and Ten-

nessee SIPs make one or both of the SIPs deficient,

their recourse is to petition EPA for a “SIP call” re-

quiring correction of the perceived deficiency,’ not re-

view by this Court exploring the intricacies of various

state permitting schemes.

* Both Alabama’s and Tennessee’s SIP were first approved by

EPA on May 31, 1972. 37 Fed. Reg. 10,842, 10,847, 10,894 (May

31, 1972). The NSR provisions of the Alabama SIP were

approved effective December 10, 1981, and the NSR provisions

of the Tennessee SIP were approved effective March 28, 1985.

46 Fed. Reg. 55,517 (Nov. 10, 1981) (Alabama); 50 Fed. Reg.

7,777 (Feb. 26, 1985) (Tennessee).

* If the EPA determines that a SIP is “substantially inade-

quate,” it may issue a “SIP call” to the offending state, requiring

the state to revise its SIP to correct the inadequacies. 42 U.S.C.

§ 7410(k)(5). ;

9

II. THE COURT OF APPEALS CORRECTLY

APPLIED THE ALABAMA SIP

The court of appeals’ application of 28 U.S.C. § 2462

to Petitioners’ claims under the Alabama SIP is wholly

unremarkable and merits no further review. The court

of appeals’ starting point was the universally ac-

cepted principle that a “claim first accrues on the date

that a violation first occurs.” Pet. App. at lla. The

court looked to the nature of Petitioners’ claim (that

TVA should have sought a pre-construction permit

before the 1982 and 1983 work in question) and the

legal basis for it (the Alabama SIP) to determine when

the claim first accrued and whether Petitioners’ com-

plaint, filed twenty years later, was timely. Jd. at

15a-20a.

In doing so, the court of appeals correctly applied

the requirements of the Alabama SIP to Petitioners’

claims. Under the Alabama SIP (as well as the Clean

Air Act itself), a source is obligated to seek a pre-con-

struction permit as a “prerequisite” to starting con-

struction. Id. at 17a; see also Envtl. Def., 127 S. Ct.

at 1429 (“The 1977 amendments required a PSD permit —

before a ‘major emitting facility’ could be ‘constructed.”);

42 U.S.C. § 7475(a) (“No major emitting facility...

may be constructed . . . unless” certain requirements

are met.). Thus, a claim for failing to obtain such a

permit accrues at the time construction begins without

it. Pet. App. at 18a. This is reflected in the citizen

suit provision that forms the basis for Petitioners’ law-

suit, which is phrased entirely in the present tense.

That provision creates a claim “against any person who

proposes to construct or constructs” without a permit,

but it does not retroactively create a claim against a

person who “has constructed” without the required

permit at some time in the distant past. 42 U.S.C.

10

§ 7604(a)(3) (emphasis added); see also Pet. App. at

13a. Similarly, the enforcement provision of Part C

of the Clean Air Act contemplates that EPA or

state enforcement officers will “take such measures,

including issuance of an order, or seeking injunctive

relief, as necessary to prevent the construction or modi-

fication of a major emitting facility which does not

conform to the requirements of this part.” 42 U.S.C.

§ 7477 (emphasis added). Thus, all around, the Clean

Air Act contemplates enforcement of pre-construction

permitting requirements at the time of construction.

Petitioners do not dispute this. Instead, they argue

that the obligation to seek a determination from the

state as to the Best Available Control Technology

(“BACT”) (which is one aspect of pre-construction per-

mitting) continues indefinitely because they say “the

BACT requirement in the SIP stands on its own” and

thus “each day TVA operates [| without BACT emis-

sion limits is a new violation ....” Pet. at 24. As

support, Petitioners cite to Alabama Administrative

Code subsections 335-3-14-.01(1)(a) and (c), which

they say “explicitly state[]” “the prohibition against

operation without an NSR permit.” Pet. at 19-20.

This argument is flawed because it contradicts the

plain language of the Alabama SIP (both at the time

of TVA’s work and now).

First, Petitioners mischaracterize the meaning and

import of Alabama Administrative Code subsections

335-3-14-.01(1)(a) and (c). These subsections are not—

either explicitly or implicitly—a “prohibition against

operation without an NSR permit,” as Petitioners

assert. Pet. at 19. Subsections (a) and (c) of rule 335-

3-14-.01(1), quite plainly, prohibit operation of certain

pollutant-emitting equipment without an “Air Permit.”

An “Air Permit” under the Alabama SIP is not “an

11

NSR permit.” An “Air Permit” is the generic permit

that a source must have to operate pollutant-emitting

equipment in Alabama, and such a permit may or

may not include NSR-related requirements. See Ala.

Admin. Code r. 335-3-14-.01(1)(a). NSR requirements

are addressed in a different section of the Alabama

SIP. See Ala. Admin. Code r. 335-3-14-.04(1)(b) (“No

new major stationary source or major modification to

which the requirements of paragraphs (9) through

(17)(c) of this rule apply shall begin construction with-

out a permit that states that the major stationary

source or major modification will meet those require-

ments.”). In the present case, Petitioners did not accuse

TVA of operating without an Air Permit; in fact, it is

undisputed that TVA did have an Air Permit. Pet.

App. at 20a-21a. Instead, as the court of appeals rightly

recognized, Petitioners accused TVA of having “the

wrong” Air Permit, which is a collateral attack well

past its time. Pet. App. at 21a (citing United States

v. AM Gen. Corp., 34 F.3d 472, 475 (7th Cir. 1994)).

Second, an analysis of the actual NSR provisions of

the Alabama SIP shows that BACT is by definition

not an independent, ongoing requirement.’ BACT for a

” Beyond the Alabama SIP, Petitioners strain to make the

Clean Air Act impose some kind of ongoing obligation to seek a

BACT determination that would give rise to “new” and “continu-

ous” violations every day the plant is operated. The plain terms

of the statute do not support this. As explained above, the Clean

Air Act requires a pre-construction determination of BACT for a

specific construction or modification project. See 42 U.S.C.

§ 7475(a). BACT is therefore wholly tied to a particular con-

struction or modification project and does not arise in any other

context. Petitioners point to the phrase “as a condition of opera-

tions” in 42 U.S.C. § 7604(f)(4) to try to cobble together an

argument that BACT is an independent emission limitation that

can serve as the basis for a citizen suit decades after the original

construction or modification. Pet. at 17-18. Petitioners’ inter-

12

source does not exist until it is determined by the

Director “on a case-by-case basis” for a particular project

before construction begins. Ala. Air Pollution Control

Comm’n Reg. 16.4.2(1) (emphasis added) (presently

codified at Ala. Admin. Code r. 335-3-14-.04(2)(1)); see

also Ala. Air Pollution Control Comm’n Reg. 16.4.8(a)

(presently codified as Ala. Admin. Code r. 335-3-14-

.04(8Xa)) (providing that “[n]o major stationary source

or major modification shall begin actual construction

unless” BACT is determined). BACT is determined

for “each proposed emissions unit” where a net emis-

sions increase “would occur.” Ala. Air Pollution Control

Comm'n Reg. 16.4.9(c) (emphasis added) (presently

codified at Ala. Admin. Code r. 335-3-14-.04(9)(c)).

Moreover, the inputs to the BACT process are based

on a snapshot assessment for a particular construc-

tion project taken before the project begins. For

example, establishing BACT requires a “[p]reapplication

.. . analysis of ambient air quality in the area” that

includes “continuous air quality monitoring data...

gathered over a period of at least one (1) year...

represent[ing] the year preceding receipt of the ap-

plication.” Ala. Air Pollution Control Comm’n Reg.

16.4.12(a) (emphasis added) (presently codified at

pretation wrenches the statutory language out of context. See

Nat'l Ass’n of Home Builders v. Defenders of Wildlife, 127 S. Ct.

2518, 2534 (2007) (“It is a fundamental canon of statutory

construction that the words of a statute must be read in their

context and with a view to their place in the overall statutory

scheme.”). The phrase “as a condition of operations” does not

even refer to NSR permits (which are mentioned expressly in

the preceding subsection). Moreover, the purpose of § 7604 is to

delineate the scope of citizen suit jurisdiction in general, not to

define BACT as anything other than a pre-construction require-

ment. Section 7604 certainly is not designed to extend a

source's obligation to seek a determination of BACT decades

after a construction or modification project has begun.

13

Ala. Admin. Code r. 335-3-14-.04(12)(a)). Based on this

analysis and other contemporaneous data, the Director

determines the appropriate degree of emission reduc-

tion that is achievable “through application of pro-

duction processes or available methods.” Ala. Air Pol-

lution Control Comm’n Reg. 16.4.2(1) (presently codi-

fied at Ala. Admin. Code r. 335-3-14-.04(2)(1)).

Thus, given the indisputable pre-construction nature

of the BACT analysis and the contemporaneous infor-

mation that is necessary to determine it in a given

case, it is particularly appropriate to apply the five-

year statute of limitations to BACT-related claims.

See Burnett v. New York Cent. R.R. Co., 380 U.S. 424,

428 (1965) (“Statutes of limitations are primarily de-

signed to assure fairness to defendants. Such statutes

promote justice by preventing surprises through the

revival of claims that have been allowed to slumber

until evidence has been lost, memories have faded, and

witnesses have disappeared.”) (internal quotations omit-

ted). As this Court has observed in the BACT context,

“EPA itself regards it as ‘imperative’ to act on a timely

basis, recognizing that courts are ‘less likely to re-

quire new sources to accept more stringent permit con-

ditions the farther planning and construction have

commenced.” Alaska Dep’t of Envtl. Conservation,

540 U.S. at 495.

That logic applies here with full force. It is undis-

puted that TVA had a valid permit to operate its

Colbert Plant. Pet. App. 3a, 7a; Doc. 171, Ex. 14-16."

It is further undisputed that TVA’s 1982 and 1983 work

was the subject of media scrutiny and public notices

and that TVA provided Petitioner Sierra Club with

* “Doc.” citations are to the documents in the district court

record.

14

actual notice of its intentions. Doc. 101, Ex. 10, 11,

14-17, 21, 22. Had Petitioners perceived some viola-

tion or shortcoming, they had five years to complain.

They did not. The court of appeals rightly held that

their complaint—filed twenty years later—was time-

barred by 28 U.S.C. § 2462.

Ill. THE COURT OF APPEALS’ APPLICA-

TION OF THE CONCURRENT REMEDY

DOCTRINE AND THE PRE-SUIT NOTICE

REQUIREMENT DOES NOT WARRANT

FURTHER REVIEW

Petitioners’ remaining arguments for review are un-

availing. First, Petitioners distort the decision below

when they say the court of appeals “rul[ed] that section

2462 bars petitioners’ claims for injunctive relief.”

Pet. at 25. The court of appeals did no such thing.

While it is true that 28 U.S.C. § 2462 can bar certain

forms of non-monetary relief,’ that was not the court

of appeals’ holding here. The court expressly held: “By

its plain language, the statute of limitations set forth

in 28 U.S.C. § 2462 applies only to claims for legal

relief; it does not apply to equitable remedies.” Pet.

App. at 22a.

Petitioners’ real gripe is not with the “Eleventh Cir-

cuit’s judge-made expansion of Section 2462,” Pet. at

26, but with the court’s application of the concurrent

remedy doctrine to their claims. And while Petitioners

* See Coghlan v. Nat'l Transp. Bd., 470 F.3d 1300, 1305 (11th

Cir. 2006) (holding that “a ‘penalty,’ as the term is used in § 2462,

is a form of punishment imposed by the government for unlaw-

ful or proscribed conduct, which goes beyond remedying the damage

caused to the harmed parties by the defendant’s action.”) (quoting

Johnson v. Sec. & Exch. Comm’n, 87 F.3d 484, 488 (D.C. Cir.

1996)).

15

complain that the court of appeals’ “ruling barring their

claims for injunctive relief... contravenes the decisions

of this Court,” Pet. at 25 (capitalization omitted), they

fail to point out, much less discuss, any such “deci-

sions.” The truth is the court of appeals contravened

no decision of this Court. Rather, it followed and ap-

plied the Court’s decision in Cope v. Anderson, 331

U.S. 461 (1947), to the facts before it. This is some-

thing that has been done by other circuits, too, and is

no basis for further review. See, e.g., Fed. Election

Comm'n v. Williams, 104 F.3d 237, 240 (9th Cir.

1996), cert. denied, 522 U.S. 1015 (1997) (holding that

federal government’s claims for injunctive relief were

barred because, per Cope, “equity will withhold its

relief . . . where the applicable statute of limitations

would bar the concurrent legal remedy”).

Second, Petitioners’ argument that the court of ap-

peals erred in affirming the dismissal of their New

Source Performance Standards (“NSPS”) claims for fail-

ure to provide adequate pre-suit notice is a flimsy basis

for this Court’s review. Petitioners point to no deci-

sion of this Court or any other court that contradicts

the court of appeals’ decision on this point. The deci-

sion to affirm was based entirely on the particulars of

Petitioners’ shotgun notice letter to TVA, not on any

point of law. Pet. App. at 29a-30a. Further review of

this holding is not appropriate or warranted.

IV. PETITIONERS HAVE A STANDING

PROBLEM

Petitioners say that “the district court granted Pe-

titioners’ motion for partial summary judgment on

standing, and TVA did not appeal that ruling.” Pet.

at 10. That is not entirely true. In point of fact, the

district court only granted in part Petitioners’ motion

16

for partial summary judgment on standing and only

with respect to “visibility impairment / opacity.” Doc.

202 at 9. The district court denied Petitioners’ mo-

tion on standing “as to other emissions.” Id.”

This is an important distinction that impacts the

ultimate justiciability of this case. As the court of ap-

peals noted, Petitioner Sierra Club filed a “separate

suit allegling] that TVA’s operations at the Colbert

Plant repeatedly violated the 20% opacity limitation

. . . during the five-year period from 1997 to 2002.”

Pet. App. at 6a (emphasis added). The district court

considered consolidating that separate opacity suit

with the present case, but decided against it. Pet.

App. at 9a. Thus, while Petitioners’ may have

established their standing for that separate opacity

suit, their standing “as to other emissions” has not

been established.

Further, the district court expressed concern about

whether Petitioners would ultimately be able to prove

standing based on alleged health effects to their mem-

bers or damage to their property. Doc. 202 at 7. The

district court cautioned Petitioners that it “would expect,

after appropriate investigation, the dismissal of claims

“The term ‘opacity’ refers to the extent to which a plume of

smoke ‘reduce[s] the transmission of light and obscure[s] the

view of the background.” Sierra Club v. Tenn. Valley Auth. , 430

F.3d 1337, 1341 (11th Cir. 2005) (quoting Ala. Admin. Code r.

335-3-1-.02(1)(tt)). Opacity is not itself a pollutant; it is a

condition. Id.

" Petitioners are also incorrect to suggest that TVA concedes

their standing. In its briefing at the court of appeals, TVA

argued that Petitioners lack standing to pursue their NSPS

claims related to sulfur dioxide. Principal Br. of TVA, No. 06-

10729, at 57 (11th Cir. June 19, 2006). In any case, standing is

jurisdictional. See Lujan v. Defenders of Wildlife, 504 U.S. 555,

559-60 (1992).

17

or parties whose legal theories or purported facts are

not supported.” Jd. Additional questions were raised

by the district court about Petitioners’ “ability to prove

causation regarding Colbert Unit 5” and whether they

will be able to “link causation between the 1982 work

at Colbert 5 and the claimed injuries.” Td. at 9.

See Lujan, 504 U.S. at 560 (holding that a “causal

connection between the injury and the conduct com-

plained of” is an “irreducible constitutional mini-

mum”). Petitioners submitted no further relevant

evidence supporting their standing after these ques-

tions were raised. Thus, there is doubt about whether

Petitioners have demonstrated their standing with

the necessary level of proof for this stage of the

litigation and whether they could carry their ultimate

burden of proof at trial. See id. at 561 (“[Standing

elements] are not mere pleading requirements but

rather an indispensable part of the plaintiffs case,

{and] each element must be supported in the same way

as any other matter on which the plaintiff bears the

burden of proof, i.e., with the manner and degree of

evidence required at the successive stages of the

litigation.”).

18

CONCLUSION

For these reasons, the petition for a writ of certio-

rari should be denied.

Respectfully submitted,

KARL R. MOOR MICHAEL D. FREEMAN

SOUTHERN COMPANY Counsel of Record

Bin $C1201, 12th Floor STEVEN G. MCKINNEY

30 Ivan Allen, Jr. Blvd.,. NW P. STEPHEN GIDIERE III

Atlanta, Georgia 30308 BALCH & BINGHAM LLP

(404) 506-0853 1901 Sixth Avenue North

Suite 1500

DANIEL S. REINHARDT “pre “

MARGARET C. CAMPBELL ee 35203

TROUTMAN SANDERS LLP :

600 Peachtree Street

Suite 5200

Atlanta, Georgia 30308

(404) 885-3000

Counsel for Amicus Curiae

May 23, 2008

APPENDIX

la

APPENDIX

Alabama State Implementation Plan

Alabama Air Pollution Control Commission

Reg. 16.4.2(1) 3

Definitions.

For the purposes of this Part only, the following

terms will have meanings ascribed in this Section:

* * KF *

(1) “Best Available Control Technology (““BACT”)”

shall mean an emissions limitation (including a

visible emission standard) based on the maxi-

mum degree of reduction for each pollutant sub-

ject to regulation under the CAA which would be

emitted from any proposed major stationary

source or major modification which the Director,

on a case-by-case basis, taking into account en-

ergy, environmental, and economic impacts and

other costs, determines is achievable for such

source or modification through application of

production processes or available methods, sys-

tems and techniques, including fuel cleaning or

treatment or innovative fuel combustion tech-

niques for control of such pollutant. In no event

shall application of BACT result in emissions of

any pollutant which would exceed the emissions

allowed by any applicable standard under 40

CFR 60 and 61. If the Director determines

that technological or economic limitations on the

application of measurement methodology to a

particular emissions unit would make the impo-

sition of an emissions standard infeasible, a

design, equipment, work practice, operational

standard, or combination thereof may be pre-

2a

scribed instead to satisfy the requirement for the

application of BACT. Such standard shall, to the

degree possible, set forth the emissions reduction

achievable by implementation of such design,

equipment, work practice, or operation and shall

provide for compliance by means which achieve

equivalent results.

3a

Alabama Air Pollution Control Commission

Reg. 16.4.8(a)

Review of Major Stationary Sources and Major

Modifications — Source Applicability and Exemptions.

(a) No major stationary source or major modifica-

tion shall begin actual construction unless, as a mini-

mum, requirements contained in Sections 16.4.9

through 16.4.17 of this Part have been met.

4a

Alabama Air Pollution Control Commission

Reg. 16.4.9(c)

Control Technology Review.

* * K K

(c) A major modification shall apply BACT for

each pollutant subject to regulation under the

CAA for which it would result in a significant net

emissions increase at the source. This require-

ment applies to each proposed emissions unit at

which a net emissions increase in the pollutant

would occur as a result of a physical change or

change in the method of operation in the unit.

5a

Alabama Air Pollution Control Commission

Reg. 16.4.12(a)

Air Quality Analysis.

(a) Preapplication Analysis.

(1) Any application for a permit sila this Part

shall contain an analysis of ambient air quality

in the area that the major stationary source or

major modification would affect for each of the

following pollutants:

(i) For the source, each pollutant that it would

have the potential to emit in a significant

amount;

(ii) For the modification, each polhatant for

which it would result in a significant net

emissions increase.

(2) With respect to any such pollutant for which

no NAAQS exists, the analysis shall contain

such air quality monitoring data as the Director

determines is necessary to assess ambient air

quality for that pollutant in any area that the

emissions of that pollutant would affect.

(3) With respect to any such pollutant (other

than nonmethane hydrocarbons) for which such

a standard does exist, the analysis shall contain

continuous air quality monitoring data gathered

for purposes of determining whether emissions of

that pollutant would cause or contribute to a

violation of the standard or any maximum

allowable increase.

(4) In general, the continuous air quality moni-

toring data that is required shall have been

gathered over a period of at least one (1) year

and shall represent the year preceding receipt of

the application, except that, if the Director deter-

6a

mines that a complete and adequate analysis can

be accomplished with monitoring data gathered

over a period shorter than one (1) year (but not to

be less than four (4) months), the data that is

required shall have been gathered over at least

that shorter period.

(5) For any application which becomes complete,

except as to the requirements of Subparagraphs

(a3) and (4) of this Section, between June 8,

1981, and February 9, 1982, the data that Sub-

paragraph (a)(3) of this Section requires shall

have been gathered over at least the period from

February 9, 1981, to the date the application

becomes otherwise complete, except that:

(i) If the source or modification would have

been major for that pollutant under 40 CFR

52.21 as in effect on June 19, 1978, any moni-

toring data shall have been gathered over at

least the period required by those regulations.

(ii) If the monitoring data would relate exclu-

sively to ozone and would not have been

required under Federal PSD regulations as in

effect on June 19, 1978, the Director may

waive the otherwise applicable requirements of

Subparagraph (a)(5) of this Section to the

extent that the applicant shows that the moni-

toring data would be unrepresentative of air

quality over a full year.

(6) The owner or operator of a proposed station-

ary source or modification of VOC who satisfies

all conditions of Section 16.3.2 may provide post-

approval monitoring data for ozone in lieu of

providing preconstruction data as required under

Paragraph (a) of this Section.

7a

Ala. Admin. Code Rule 335-3-14-.04(2)()

(current)

(2) Definitions.

For the purposes of this rule only, the following

terms will have meanings ascribed in this

paragraph:

* * * K €

(1) “Best Available Control Technology (BACT)”

shall mean an emissions limitation (including a

visible emission standard) based on the maxi-

mum degree of reduction for each regulated NSR

pollutant which would be emitted from any

proposed major stationary source or major modi-

fication which the Director, on a case-by-case

basis, taking into account energy, environmental,

and economic impacts and other costs, deter-

mines is achievable for such source or modifica-

tion through application of production processes

or available methods, systems and techniques,

including fuel cleaning or treatment or innova-

tive fuel combustion techniques for control of

such pollutant. In no event shall application of

BACT result in emissions of any pollutant which

would exceed the emissions allowed by any

applicable standard under 40 CFR 60 and 61. If

the Director determines that technological or

economic limitations on the application of meas-

urement methedology to a particular emissions

unit would make the imposition of an emissions

standard infeasible, a design, equipment, work

practice, operational standard, or combination

thereof may be prescribed instead to satisfy the

requirement for the application of BACT. Such

standard shall, to the degree possible, set forth

8a

the emissions reduction achievable by imple-

mentation of such design, equipment, work

practice, or operation and shall provide for

compliance by means which achieve equivalent

results.

9a

Ala. Admin. Code Rule 335-3-14-.04(8)(a)

(current)

(8) Review of Major Stationary Sources and Major

Modifications — Source Applicability and Exemp-

tions.

(a) No major stationary source or major modi-

fication shall begin actual construction unless, as

a minimum, requirements contained in para-

graphs (9) through (17) of this rule have been

met.

10a

Ala. Admin. Code Rule 335-3-14-.04(12)(a)

(current)

(12) Air Quality Analysis.

(a) Preapplication Analysis.

1. Any application for a permit under this rule

shall contain an analysis of ambient air quality

in the area that the major stationary source or

major modification would affect for each of the

following pollutants:

(i) For the source, each pollutant that it

would have the potential to emit in a signifi-

cant amount;

(ii) For the modification, each pollutant for

which it would result in a significant net

emissions increase.

2. With respect to any such pollutant for

which no NAAQS exists, the analysis shall

contain such air quality monitoring data as

the Director determines is necessary to assess

ambient air quality for that pollutant in any

area that the emissions of that pollutant would

affect.

3. With respect to any such pollutant (other

than nonmethane hydrocarbons) for which

such a standard does exist, the analysis shall

contain continuous air quality monitoring data

gathered for purposes of determining whether

emissions of that pollutant would cause or

contribute to a violation of the standard or any

maximum allowable increase.

4. In general, the continuous air quality moni-

toring data that is required shall have been

gathered over a period of at least one (1) year

lla

and shall represent the year preceding receipt

of the application, except that, if the Director

determines that a complete and adequate

analysis can be accomplished with monitoring

data gathered over a period shorter than one

(1) year (but not to be less than four (4)

months), the data that is required shall have

been gathered over at least that shorter period.

5. Reserved.

6. The owner or operator of a proposed station-

ary source or modification of VOC who satisfies

all conditions of rule 335-3-14-.05 may provide

post-approval monitoring data for ozone in lieu

of providing preconstruction data as required

under subparagraph (a) of this paragraph.

7. For any application that becomes complete,

except as the requirements of subparagraphs

(a)3. and 4. of this paragraph pertaining to

PM10, after December 1, 1988 and no later

than August 1, 1989 the data that subpara-

graph (a)3. of this paragraph requires shall

have been gathered over at least the period

from August 1, 1988 to the date the application

becomes otherwise complete, except that if the

Director determines that a complete and ade-

quate analysis can be accomplished with moni-

toring data over a shorter period (not to be less

than 4 months), the data that subparagraph

(a)3. of this paragraph requires shall have

been gathered over that shorter period.

8. With respect to any requirements for air

quality monitoring of PM10 under subpara-

graphs (8) (k) and (1) of this rule, the owner or

operator of the source or modification shall use

12a

a monitoring method approved by the Director

and shall estimate the ambient concentrations

of PM10 using the data collected by such

approved monitoring method in accordance

with estimating procedures approved by the

Director.