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

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## Record

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

## Text

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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.

PAE ois cs iisics ivan anucaadanceaaenaeeeane la
Ala. Air Pollution Control Comm’n Reg.

RTD iii cicccsicsecaisgisveceutasaeremenenl eee aleae 3a
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0455%3A4. Public record. Not legal advice.