# Petition for Writ of Certiorari — Franklin County County Power Power of of Illinois, LLC v. Sierra Club Club (No. 08-1304) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0428%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2008 ## Text Supreme Court, U.S. a FILED \ 0, 081304 APR 2 0 2009 No. O80 F FICE OF THE CLERK IN THE Supreme Court of the United States FRANKLIN COUNTY POWER OF ILLINOIS, LLC, FORMERLY KNOWN AS ENVIROPOWER OF ILLINOIS, LLC; ENVIROPOWER, LLC; AND KHANJEE HOLDING (US), INC., Petitioners, se SIERRA CLUB, Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit PETITION FOR A WRIT OF CERTIORARI STEPHEN M. SOBLE CARTER G. PHILLIPS* SOBLE INTERNATIONAL JACQUELINE G. COOPER LAW, PLLC SIDLEY AUSTIN LLP 1201 Pennsylvania 1501 K Street, N.W. Avenue, N.W. Washington, D.C. 20005 Suite 500 (202) 736-8000 Washington, D.C. 20004 (202) 215-4320 Counsel for Petitioners April 20, 2009 * Counsel of Record SNARES RON AEE NG IROL EES NS PLAS, OOO TEER PURE ES EL ESI V ICR IOLEY Ah LEAS DOBLE LEG BY PREEELE PRE EO AELENE WILSON-EPES PRINTING CO ,INC — (202) 789-0096 -— WaSHINGTON,D C 20001 QUESTION PRESENTED Whether the Seventh Circuit erred in holding that an organization has standing under the citizen suit provision of the Clean Air Act (“CAA”) to seek an injunction against the construction of a power plant and, absent any agency determination, effectively to supplant the jurisdiction vested by Congress in the agency, without the citizen suit plaintiff establishing that the emission limitations in the existing permit pose a realistic threat of injury to its members’ interests and without proving that a new permit would alleviate its members’ concerns. (1) 11 PARTIES TO THE PROCEEDING All parties to the proceeding are identified in the caption. RULE 29.6 STATEMENT Pursuant to Rule 29.6 of the Rules of this Court, petitioners state that EnviroPower, LLC is a Kentucky limited lability company, with no parent company. No publicly held corporation owns 10 percent or more of its stock. Franklin County Power of Jllinois, LLC, f/k/a EnviroPower of Illinois, LIC is an Illinois limited hability company. EnviroPower, LLC is its parent company, owning 100 percent of its stock. No publicly held corporation owns 10 percent or more of its stock. Khanjee Holding (US), Inc. has no parent company, and no publicly held corporation owns 10 percent or more of its stock. TABLE OF CONTENTS QUESTION PRESENTED PARTIES TO THE PROCEEDING ..................0.5. RULE 29.6 STATEMENT JURISDICTION CONSTITUTIONAL AND STATUTORY PRO- VISIONS INVOLVED A. Statutory Background B. Factual Background C. Proceedings Below REASONS FOR GRANTING THE PETITION... I. THE DECISION BELOW CONFLICTS WITH DECISIONS OF THIS COURT Il. THE COURT OF APPEALS’ STANDING RULING POSES AN ISSUE OF FUNDA- MENTAL IMPORTANCE CONCLUSION APPENDIX A: Sterra Club — v. Franklin County Power, 546 F.3d 918 (/th Cir. 2008) .. APPENDIN B: Sierra Club - sv. Franklin County Power. No. 05-ev-4095 (S.D. Ul. Oct Neen ne pacaaueccdeansdvabvcces Seren APPENDIX C: Sierra Club V Frankltn County Power, No. 06-4045 (7th Cir. Dec. 19. Ne ineivacenvased’ A Nie PRESS Sac nee ...... OYA (111) iV TABLE OF AUTHORITIES CASES Allen v. Wright, 468 U.S. 737 (1984) City of Los Angeles v. Lyons, 461 U.S. 95 14, 15, 16 DaimlerChrysler Corp. v. Cuno, 547 US. 332 (2006) EEOC v. Waffle House, Inc., 534 U.S. 279 (2002) Families Concerned About Nerve Gas Incineration v. U.S. Dep't of the Army, 380 F. Supp. 2d 1233 (N.D. Ala. 2005) Friends of the Earth, Inc. v. Laidlaw Env7 Servs. (TOC), Inc., 528 U.S. 167 (2000).. passim Heckler v. Chaney, 470 U.S. 821 (1985) 17 Larson v. Valente, 456 U.S. 228 (1982) ........ 19 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) passim Mobil Oil Exploration & Prod. Se. Inc. v. United Distrib. Cos., 498 U.S. 211 Natl Parks Conservation Ass’n v. TVA, 175 F. Supp. 2d 1071 (E.D. Tenn. 2002) O’Shea v. Littleton, 414 U.S. 488 (1974) Ogden Projects, Inc. v. New Morgan Landfill Co., 911 F. Supp. 863 (E.D. Pa. 22 Sierra Club v. Morton, 405 Bf > SESE Pe OEE MEE PS BORIP RENE OO RPA Scr 15, 16 Summers v. Earth Island Inst., 129 S. Ct. PE Ue ccc dusnsidudean coder sceceauremanemiinets i3, 20, 21 CONSTITUTION, STATUTES AND REGULATION AP. Comet, BPE. TEE, BD... sicscececcavsacce, eee 1] 42 U.S.C. § 7401(b)(1) Pa aiiciaess te esd hoes eee ebes Ss 6 § S V TABLE OF AUTHORITIES -— continued 42 U.S.C. §§ 7470-7492 TAO § 7479(2)(A) ; § 7661(a)(b)(5) Poe eRe Eo ks |, re RULES Sup. Ct. R. 10(c) PETITION FOR A WRIT OF CERTIORARI Petitioners Franklin County Power of Illinois, LLC, ‘formerly known as EnviroPower of Illinois, LLC, EnviroPower, LLC, and Khanjee Holding (US), Inc. respectfully petition for a writ of certiorari to review the judgment and opinion of the United States Court of Appeals for the Seventh Circuit. OPINIONS BELOW The opinion of the court of appeals, Pet. App. la- 32a, is reported at 546 F.3d 918. Its decision denying the petition for rehearing and rehearing en bane, td. at 69a-70a, is unreported. The opinion of the district court, id. at 33a-68a, is unreported. JURISDICTION The court of appeals issued its judgment and opinion on October 27, 2008. Pet. App. la-32a. A timely petition for rehearing and rehearing en banc was denied on December 19, 2008. Jd. at 69a-70a. On February 25, 2009, Justice Stevens extended the time for filing this petition to and including April 18, 2009, which is a Saturday. Pursuant to Sup. Ct. R. 30.1, the petition is being timely filed on Monday, April 20, 2009. The jurisdiction of this Court. is invoked pursuant to 28 U.S.C. § 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Article II], Section 2 of the United States Constitution, which provides: The judicial Power shall extend to...Cases... [and] Controversies... . 2 42 U.S.C. § 7604, the citizen suit provision of the Clean Air Act (“CAA”), which provides: (a)... [A]ny person may commence a civil action on his own behalf... (3) against any person who proposes. to construct or constructs any new or modified major emitting facility without a permit required under [42 U.S.C. §§ 7470 et seq.] (relating to significant deterioration of air quality)... or who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of any condition of such permit. STATEMENT OF THE CASE The decision below conflicts with this Court’s interpretation of Article III of the Constitution, which requires a plaintiff who seeks injunctive relief to present concrete proof of a realistic threat of future injury and to demonstrate that it is likely, and not merely speculative, that the rehef sought will redress the specific injury alleged. The court of appeals diluted these requirements by holding that respondent has standing to seek an _ injunction against the construction of a power plant on the ground that the construction permit has automatically expired and a new permit must be obtained, even though the organization has not established that the emission limitations in_ the existing permit pose a realistic threat of injury to its members and it is wholly speculative whether (1) the emission limitations in a new permit would be more stringent than those of the existing permit, and (2) any change in the emission limitations would alleviate the alleged threat of injury. 3 This holding represents a sigmificant departure from this Court’s Article III standing principles in the citizen suit context. By relying on respondent’s mere assertion of harm to aesthetic and recreational interests and a chain of speculation, the court of appeals ignored and failed to hold respondent to the specific showings and burdens of proof that this Court has set forth in its standing decisions. This analysis is unsound, reflects fundamental confusion about the application of standing principles in the citizen suit context, and warrants this Court’s review. This holding also presents a recurring issue of national importance because a dilution of the Article IiI standing requirements in this context will invite private groups to bring suit any time there is any conceivable issue with respect to a permit, thereby clogging the courts with questionable citizen suits that are calculated to disrupt construction rather than hold responsible’ actual violators = of environmental! standards. This will not only prevent needed and beneficial energy plants from being built, but will also shift the enforcement of permit requirements to these groups and away from the federal and state environmental agencies to whom Congress and state legislatures have delegated responsibility to protect the environment. A. Statutory Background. Congress enacted the Clean Air Act (“CAA”) in order “to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.” 42 U.S.C. § 7401(b)(1). ‘To accomplish these goals, the CAA includes provisions designed to prevent significant deterioration of air quality. /d. § 7470-7492. Among these, 42 U.S.C. § 7475(a)(1) provides that no “major emitting facility” can be 4 constructed after August 7, 1977 unless “a permit has been issued for such proposed facility in accordance with this part setting forth emission limitations for such facility.” The emission limitations set forth in the permit (called a “PSD permit”) must reflect “the best available control technology [BACT] for each pollutant subject to regulation under this chapter emitted from, or which results from, such facility.” Id. § 7475(a)(4). The federal Environmental Protection Agency (“EPA”) has delegated to the [Illinois Environmental Protection Agency (“IEPA”) the authority to issue PSD permits in Tllinois, although EPA retains ultimate authority over the permits. The permitting process is lengthy and complex, requiring applicants to expend significant time and resources to submit detailed analyses. Interested persons have a full opportunity to participate in the process through a required public hearing at which they may appear and submit written or oral presentations. Id. § 7475(a)(2). Once a PSD permit is issued, EPA regulations provide that it “become[s] invalid if construction is not commenced within 18 months after receipt of such approval, if construction is discontinued for a period of 18 months or more, or if construction is not completed within a reasonable time.” 40 C.F.R. § 52.21(r)(2). Congress has defined commencement of construction to mean that the permit-holder has either “begun, or caused to begin, a continuous program of physical on-site construction of the facility” or “entered into binding agreements or contractual obligations, which cannot be canceled or modified without substantial loss to the owner or operator, to undertake a program of construction of the facility to be completed within a reasonable time.” 3) 42 U.S.C. § 7479(2)(A). The 18-month period may be extended “upon a satisfactory showing that an extension is justified.” 40 C.F.R. § 52.21(r)(2). B. Factual Background. Petitioners are experienced developers of electric power plants in the United States and elsewhere. They have built numerous power plants that are currently in operation. This case concerns their efforts to build a coal-fired power plant using state-of- the-art CFB (circulating fluidized-bed) clean-coal technology at the site of a former coal mine in Benton, Illinois. Such power plants are technological- ly complex projects that require extensive planning and customized design work. On August 15, 2000, after conducting a detailed feasibility study, petitioners filed an application with the IEPA for a PSD permit to build the Benton power plant. Pet. App. 37a.!. The IEPA conducted a comprehensive review of the application and a public hearing was held on May 8, 2001. Respondent Sierra Club did not appear at the hearing, file any submissions with the IEPA, or participate in the permitting process in any way. Id. On July 3, 2001, IEPA issued a PSD permit for the plant. Pet. App. 37a. Petitioners worked toward completion of the facility by “obtain{ing] an engineering report and a scoping study,” “working on a boiler. design” and “procur{ing] necessary resources.” Id. at 38a. In December 2002, petitioners entered into an agreement with an engineering and construction firm concerning construction of the plant. Id. at 38a-42a. | These facts are set forth in the district court’s opinion. 6 On September 30, 2004, an IEPA inspector visited the plant site and “found that construction had commenced.” Pet. App. 43a. On November 19, 2004, however, the IEPA notified petitioners that it had made a “preliminary finding” that the PSD permit had expired. Id. at 44a. This notification provided petitioners with the opportunity to refute the preliminary finding by submitting documentation requested by the IEPA. /d.; see 42 U.S.C. § 7414(a) (authorizing EPA Administrator or authorized representative to issue formal information requests). The EPA also requested that petitioners provide it with information concerning the status of the permit. Pet. App. 44a. Petitioners disputed the IEPA preliminary finding and fully complied with the information requests by timely submitting several thousand pages of documentation to the IEPA and EPA. Id. On January 5, 2005, before petitioners had com- pleted their responses to the information requests, respondent notified petitioners and the agencies of its intent to file suit under the CAA’s citizen suit provision. Pet. App. 44a; see 42 U.S.C. § 7604(b) (requiring potential citizen suit plaintiffs to provide the alleged violator and agencies with 60 days advance notice of intent to sue). The instant lawsuit was then filed on May 20, 2005. Pet. App. 44a. The filing of the Sierra Club suit chilled all further agency action with respect to the PSD permit. In particular, the IEPA has never made a fina] determination concerning the status of the permit. /d.* 2 Pursuant to 42 U.S.C. § 7661la(b(5)(B) & (C), petitioners were required to file for renewal of their PSD permit after five years and to update their BACT and air modeling analyses They submitted a timely application for a renewal permit in 2006, but the IEPA did not act upon it 7 C. Proceedings Below. Respondent’s Lawsuit. Respondent’s citizen suit alleged that petitioners propose to construct a power plant without a valid PSD permit. See 42 U.S.C. § 7604(a)(3) (providing for citizen suit “against any person who proposes to construct or constructs any new or modified major emitting facility without a [PSD] permit”). Respondent sought declaratory relief, an injunction requiring petitioners to stop construction until they have a valid PSD permit, fines, costs, and attorneys’ fees. Pet. App. 33a-34a. Petitioners filed a motion to dismiss and a motion for summary judgment, arguing, inter alia, that respondent lacked standing to sue under Article III of the Constitution. In response to petitioners’ motion for summary judgment on the standing issue, respondent submitted the affidavit of one of its members, Barbara McKasson, who alleged that she and her family have taken trips to the Rend Lake area every other year since 1987 to fish and to engage in other recreational activities; that she intends to continue taking trips to the area; and that the Rend Lake area is less than three miles from the proposed plant. Affidavit of Barbara McKasson, 4{| 4, 6, 8 (May 2, 2006) (““McKasson Aff.”).2 Ms. McKasson then set forth the emission limitations contained in petitioners PSD permit, the emission limitations contained in two other PSD permits issued by the IEPA for coal-fired power plants in 2003 and 2005 (which she asserted were “lower than the rates established by IEPA in the EnviroPower PSD 4 Ms. McKasson’s affidavit is document number 93 in the district court record. As the district court acknowledged, Ms McKasson did not even know about respondent's lawsuit until after it was filed. Pet. App. 52a 8 permit”), and alleged that “fblecause the [Benton] Power Plant would be operating under an expired permit, the [Benton] Power Plant will emit pollutants in excess of the emission rates now considered acceptable by the IEPA.” Jd. 4 13-18. McKasson then alleged in her affidavit that “[ijf the [Benton] Power Plant is constructed without a valid PSD permit,” her “use and enjoyment of the Rend Lake area will be impaired” because of negative aesthetic effects and her concerns about adverse health effects, which would “likely reduce, or eliminate altogether, [her] trips to Rend Lake.” IZd. {| 19. She also alleged that “[i]f the Power Plant is constructed as proposed,” she will “reduce the consumption of fish” from a pond at her home (approximately 45 miles from the proposed plant) due to concerns about mercury accumulation. Jd. {| 21. Finally, she alleged that the requested injunction would “address{]” her concerns because “[ilf Defendants then obtained a new PSD Permit permitted under current standards, [she] and [her] family would be exposed to less harmful air pollution at Rend Lake and at [her] home.” /d. 4] 22. The district court ruled on the dispositive motions without ever holding an evidentiary hearing or even permitting oral argument. District Court Decision. The district court held that respondent has Article III standing to bring this suit based on the standards for organizational standing established in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000), and the standards for individual standing set out in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). See Pet. App. 48a-52a. 9 With respect to the requirement that respondent establish “an injury in fact to at least one of its members,” the district court held that respondent satisfied this requirement because Ms. McKasson alleged in her affidavit that “if the defendants build the Plant without the appropriate permit, the resulting levels of pollution from the operating Plant will directly affect her use and enjoyment of the Rend Lake area.” Pet. App. 50a. No scientific or other objective evidence was ever introduced to corroborate Ms. McKasson’s unsupported assertions. Nonethe- less, the district court further relied on McKasson’s statement “that the pollution that will be generated by the Plant constructed without an appropriate permit will also affect her use and enjoyment of her own property 45 miles from the proposed Plant site.” Id. The district court concluded that these state- ments establish “an injury in fact of a Sierra Club member that is imminent and not conjectural or hypothetical.” Id. With respect to the requirement that respondent establish “a causal connection between McKasson’s injury and pollution that will imminently emit from the Plant,” Pet. App. 50a, the district court held that respondent’ satisfied this requirement because “McKasson stated in her affidavit that levels of those pollutants allowed by the PSD permit the Sierra Club believes has expired would cause the imminent injury of which she complains,” td. at 51a. The court found that these statements establish that “McKasson’s injury is fairly traceable to the defendants’ construc- tion of the Plant allegedly without an appropriate permit.” Jd. With respect to the requirement that McKasson’s purported injury be redressable by the remedy that she seeks, the district court held that respondent 10 satisfied this requirement because “McKasson stated that PSD permits for power plants issued after the defendants’ PSD permit contain lower BACT [best available control technology] emissivn levels (as they should since technology tends to make advancements, not regressions)” and “that if the Court were to halt construction of the Plant until the defendants obtained a new PSD permit, the BACT emission levels for the new PSD permit would be lower and her exposure to harmful pollutants at Rend Lake and at her home would be lessened.” Pet. App. 5la. At no time, however, did Sierra Club or Ms. McKasson ever specify which pollutant would cause what harm.4 The district court also determined that the PSD permit had expired and made other rulings that are not relevant here. It enjoined petitioners “to stop actual construction of the Plant until they have obtained a valid PSD _ permit” and_ deferred consideration of a fine and attorneys’ fees to a later date. Pet. App. 67a-68a. Seventh Circuit Decision. The Seventh Circuit affirmed. With respect to standing, the Seventh Circuit upheld the district court’s determination that 4 Given its interpretation of the standing requirements and Ms. McKasson’s subsequent plaintiff status, the district court did not address the standing claim of Verena Owen, another Sierra Club member. Pet. App. 5la n.l. Ms. Owen exercised a similar lack of diligence in supporting her standing claim with scientific fact and evidence as Ms. McKasson; she merely asserted that she lives near Chicago (approximately 350 miles from the proposed plant) and was concerned about the effects of the plant’s emission on the air quality in the greater Chicago area. Even Ms. McKasson’s patently insubstantial aesthetic and recreational interests were stronger than Ms. Owen's, and Ms. McKasson therefore served as the sole standing plaintiff for the district court. 11 respondent has standing through its member, Ms. McKasson. The Seventh Circuit agreed that Ms. McKasson satisfied the injury in fact requirement because she states in her affidavit “that she will experience diminished aesthetic and recreational value if the Company constructs and operates the power plant under the 2001 PSD permit.” Pet. App. 8a; see also id. (noting that “fiJf the proposed plant is built, McKasson will be exposed to emissions from the plant”). The court of appeals further noted that McKasson asserted in her affidavit that she will cease visiting the area “if the Company builds the plant under the 2001 permit .. . because the pollutants emitted based on the permit will harm her.” Zd. With respect to the causation or traceability requirement, the Seventh Circuit held that this requirement was satisfied because “under the 2001 PSD permit the proposed plant will emit airborne pollutants . . . three miles from Rend Lake” and McKasson alleges that “these pollutants and the resulting decrease in visibility will negatively impact her enjoyment of the lake.” Pet. App. 10a-lla. The court of appeals acknowledged that “no one knows the ultimate magnitude of McKasson’s injury,” but held that this does not matter because “[wle do know... . that the plant will release some pollutants and that McKasson believes these pollutants will ruin her ability to enjoy Rend Lake and taint the surrounding area.” T/d. at lla: see also id. at 12a (finding that McKasson’s injury ts “fairly traceable to the plant” because it “stems from the emissions of the Company’s proposed plant’). With respect to redressability, the Seventh Circuit held that this requirement was satisfied because it 1s 12 “reasonable to believe that any new permit the Company obtains will have tougher emission standards than the 2001 PSD permit.” Pet. App. 13a. The court of appeals based this “reasonable belief” on the fact that “pollution contro] technology tends to improve over time” and that “the record indicates that the IEPA issued PSD permits in 2003 and 2005 for similar coal-fired power plants with emission standards that were significantly more stringent than those in the Company’s 2001 permit.” Jd. at 12a-13a. The court of appeals further held that it “need not determine exactly how much tougher those standards will be” because “[iJt is enough that [McKasson’s] concerns will be addressed if more stringent emission standards are imposed than those required under the 2001 permit, even though the plant will still emit some pollutants if the Company obtains a new PSD permit.” Jd. at 13a. The Seventh Circuit denied rehearing and rehearing en banc. REASONS FOR GRANTING THE PETITION I. THE DECISION BELOW CONFLICTS WITH DECISIONS OF THIS COURT. The decision below merits review because _ it conflicts with this Court’s constitutional standing jurisprudence requiring a plaintiff to allege “personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006) (internal quotation omitted). See Sup. Ct. R. 10(c) (a consideration favoring review on certiorari is where a federal court of appeals “decided an important federal question in a way that conflicts with relevant decisions of this Court”). 13 Parties seeking to “invoke the power of federal courts” must satisfy the vhreshold requirement imposed by Article III of the Constitution that they “must allege an actual case or controversy.” O’Shea v. Littleton, 414 U.S. 488, 493 (1974) (citing cases). This “limitation ‘is founded in concern about the proper — and properly limited — role of the courts in a democratic society.” Summers v. Earth Island Inst., 129 S. Ct. 1142, 1148 (2009) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). Specifically, the case or controversy requirement restricts the judicial power “to the traditional role of Anglo-American courts, which is to redress or prevent actual or imminently threatened injury to persons caused by private or official viclation of law.” Id.5 “{(Ajn essential and unchanging part of th[is] case- or-controversy requirement” is the doctrine of standing. Lujan v. Defenders of Wildlife. 504 U.S. 555, 560 (1992) (citing Allen v. Wright, 468 U.S. 737, 751 (1984)). This Court has defined the “irreducible constitutional minimum of standing” as containing three elements. First, the plaintiff must have suffered an “injury in fact”: an “invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Jd. at 560 (internal citations and quotation marks omstted). Second, “there must be a causal connection between the injury and the conduct complained of,” t.e., “the injury has to be fairly .. . trace[able] to the challenged action of the defendant.” Jd. (internal quotation 5 Because Article III is so fundamental to a proper separation of powers under the Constitution, this Court has granted certioram to address Article III standing questions even in the absence of a clear conflict among the circuits. See, e.g., Summers, 1298S. Ct. 1142. 14 marks omitted; omission and alteration in original). Third, “it must be hkely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Jd. at 561 (internal quotation marks omitted). Together, these requirements com- pel plaintiffs to “demonstrate a ‘personal stake in the outcome’ in order to ‘assure that concrete adverseness which sharpens the presentation of issues’ necessary for the proper resolution of’ important questions of federal law. City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). It is the plaintiffs burden to establish standing. Lujan, 504 U.S. at 561 (“The party invoking federal jurisdiction bears the burden of establishing these elements.”). An organization has standing to sue if (1) one or more of its members “would otherwise have standing to sue in their own right” under the standards set forth in Lujan; (2) “the interests at stake are germane to the organization’s purpose”; and (3) “neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Env’ Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). The Seventh Circuit has departed from core components of this framework. Although the court of appeals paid lip service to the foregoing principles, see Pet. App. 6a-7a, it plainly ignored them in holding that respondent has standing to challenge the validity of petitioners’ PSD permit and seek an injunction that will delay construction of the plant. Before turning to the court of appeals’ flawed application of the standing requirements, it 1s important to understand what respondent does not claim in this lawsuit. Respondent does not claim that petitioners have violated any environmental law or 15 any emission limitation of their PSD permit, or that its members fear, based on evidence, that petitioners will commit any such violation in the future. Nor has it challenged any aspect of the IEPA’s actions in approving the PSD permit, including its establish- ment of the permit’s emission limitations in accor- dance with the “hest available control technology” standard, see 42 U.S.C. § 7475(a)(4). As a result, respondent makes no claim that a timely constructed coal-fired power plant built in conformance with the permit would violate any law or environmental standard. With this background in mind, it is clear that the court of appeals’ analysis of the Lujan factors is unsound. First, the court of appeals’ determination that respondent, through its member McKasson, satisfied the “injury in fact” requirement conflicts with this Court’s decisions. McKasson’s alleged “injury” is harm to her aesthetic and recreational interests that allegedly will occur if petitioners’ plant is built under the conditions of the PSD permit. To be sure, this Court has held that harm to the aesthetic and recreational interests of environmental plaintiffs who use affected areas can constitute “injury in fact.” See Laidlaw, 528 U.S. at 183; Sierra Cluo v. Morton, 405 U.S. 727, 734-35 (1972). But it has also held that in order to serve as the basis for injunctive relief, a plaintiff must show that she faces a “realistic threat” of the alleged future injury and that mere “subjective apprehensions” that such an injury will occur are insufficient to support standing. Laidlaw, 528 U.S. at 184; Lyons, 461 U.S. at 107 n.8 (evaluating the “reasonableness of [the plaintiffs] fear” of future injury); see also 461 U.S. at 101 (“Abstract injury is not enough.”). 16 Here, McKasson’s feared injuries to her aesthetic and recreational interests are rooted in “subjective apprehensions” that are neither “realistic” nor “reasonable.” This is not a case like Laidlaw, where the defendant has engaged in “continuous and pervasive illegal discharges of pollutants,” 528 U.S. at 184, or a case like Morton, where the plaintiff has asserted under the Administrative Procedure Act that the approval of the project contravened federal environmental laws, 405 U.S. at 730 & n.2. As noted, respondent does not claim that petitioners have violated any environmental standard, that McKasson or any of its other members fear that they will do so in the future, or that the IEPA’s approval of the permit was in any way improper. Instead, McKasson’s alleged fears of injury stem from the emission limitations that the IEPA, after extensive analysis and public comment, approved for the PSD permit under the governing standard set by Congress. In other words, her fears stem from emission limitations that the federal and _ state environmental agencies deemed sufficient to protect air quality under the CAA. Personal fears of emissions that comply with federal clean air standards, however, cannot be credited as a “realistic” or “reasonable” basis for standing. Such fears are a classic example of fears based on “subjective apprehensions,” Lyons, 461 U.S. at 107 n.8, that are — at best — “conjectural” or “hypothetical,” Lujan, 504 U.S. at 560 (nternal quotation marks omitted). At the very least, the court of appeals’ holding that subjective fears based 6 The reasonableness of McKasson’s fears is further undercut by the petitioners’ representations to the courts below that the plant has been designed “to produce emissions below permitted levels.” Pet. App. bla. 17 on permissible emission levels can support standing undermines the environmental protection scheme that Congress has established and permits judicial second-guessing of the considered judgment of the expert agencies. See Mobil Oil Exploration & Prod. Se. Inc. v. United Distrib. Cos., 498 U.S. 211, 231 (1991) (declining to “second-guess” agency’s “reasoned determination” in a “complex area”); EEOC v. Waffle House, Inc., 5384 U.S. 279, 297 (2002) (courts cannot “second-guess” agency judgments “balanc[ing] the competing policies”); Heckler v. Chaney, 470 U.S. 821, 831-32 (1985) (“The agency 1s far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities.”). In addition, under the Seventh Circuit’s approach to analyzing injury in fact, citizen suits can be predicated on collateral attacks by private interest groups against the substance of state-issued permits — a result that several other federal courts have held impermissible. See, e.g., Natl Parks Conservation Ass’n, Inc. v. TVA, 175 F. Supp. 2d 1071, 1079 (E.D. Tenn. 2092) (finding “no evidence in the language of the Clean Air Act to indicate that Congress intended that citizen suits could be used to collaterally attack” the emission standards in state permits); cf. Families Concerned About Nerve Gas Incineration v. U.S. Dep't of the Army, 380 F. Supp. 2d 1233, 1258 (N.D. Ala. 2005) (citizen suit provision of the Resource Conservation Recovery Act does not provide court with “jurisdiction to hear collateral challenges to the facility's [state-issued] permit”). As these courts correctly recognized, such collateral attacks are an improper attempt to disrupt and delay construction of facilities that the relevant public officials have deemed compliant with federal standards. The court of appeals’ holding that 18 respondent has standing based on alleged injuries that arise from the emission limitations in the PSD permit is particularly troubling because respondent had a full opportunity to participate in the lengthy IEPA permitting process, but chose not to do so. Second, even if the Seventh Circuit properly applied this Court’s decisions in finding that respondent satisfied the “injury in fact” requirement, its determination that respondent satisfied the causation and _ redressability requirements does serious violence to this Court’s decisions. See Allen v. Wright, 468 U.S. 737, 753 n.19 (1984) (noting the frequent overlap between these two requirements). Because respondent relied on McKasson’s alleged aesthetic and recreational interests as the Article III injury, the rest of the standing analysis must be grounded in that injury. The Seventh Circuit misapplied this Court’s standing decisions, however, in finding that the causation and _ redressability requirements are Satisfied with respect to that alleged injury. To satisfy the causation requirement, respondent must demonstrate “a causal connection between the injury and the conduct complained of.” Lujan, 504 U.S. at 560. The Seventh Circuit held that this requirement was satisfied because “under the 2001 PSD permit the proposed plant will emit airborne pollutants” that McKasson alleged would harm her aesthetic and recreational interests. Pet. App. 10a- lla; see also id. at 12a (finding that McKasson’s injury is “fairly traceable to the plant” because it “stems from the emissions of the Company’s proposed plant”). Under this analysis, however, the threatened harm to McKasson’s aesthetic and_ recreational interests is traceable to the IEPA’s issuance of the PSD permit in the first place with the specified 19 emission limitations, not to the conduct that respondent complains of here — petitioners’ intent to build under that permit. In other words, the injury that McKasson alleges would have arisen even from timely construction of the plant pursuant to the PSD permit, and therefore is not fairly traceable to the allegedly expired permit. Respondent faces even greater problems with respect to redressability. The relief it seeks — and obtained below — was not an absolute injunction against construction of the plant, but instead an injunction that prevents petitioners from building the plant until they obtain a new permit. Pet. App. 67a (enjoining petitioners “to stop actual construction of the Plant until they have obtained a valid PSD permit’). The Seventh Circuit held that the redressability requirement is satisfied because it is “reasonable to believe that any new permit the Company obtains will have tougher’ emission standards than the 2001 PSD permit.” /d. at 13a; see also id. (noting that McKasson’s “concerns will be addressed if more stringent emission standards are imposed”). In other words, the court of appeals’ finding of redressability is based on the hypothetical possibility of a difference between the emission limitations in the PSD permit and a new permit, and the possible real-world effect of any such incremental] difference. This reasoning cannot be squared with this Court's holdings that “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 561 (internal quotation marks omitted; emphases added); see also Allen, 468 U.S. at 751 (redressability requires that the plaintiff's alleged injury is “likely to be redressed by the requested relief’) (emphasis added); Larson vy. 20 Valente, 456 U.S. 228, 243 n.15 (1982) (the redress- ability requirement is satisfied when a _ plaintiff “shows that a favorable decision will relieve a discrete injury to himself’) (emphasis added). The Seventh Circuit’s finding that the requested injunction will redress McKasson’s alleged injury relies on a chain of speculative inferences — an approach that this Court has held inconsistent with Article III]. See Summers, 129 S. Ct. at 1150 (rejecting theory of Article III injury that required multiple assumptions). The Seventh Circuit’s first speculative inference is that a new permit for the Benton plant would have tougher emission standards. It is true, as a broad generalization, that pollution-control technology is improving. But coal-fired power plants are very complex, customized projects with numerous vari- ables, including different designs, different technolo- gies, and different types of coal inputs. As a result, the determination of appropriate emission limitations for such plants under the governing BACT standard involves a highly individualized, case-by-case inquiry. Accordingly, the question of what emission limitations the IEPA would establish for a new PSD permit for the Benton plant, and how those would compare to the limitations in the 2001 permit, is inherently and hopelessly speculative. Under this Court’s precedent, however, federal courts may not speculate that state policymakers will make a particular decision in the future to establish standing. DaimlerChrysler, 547 U.S. at 346. Instead, when an element of standing “depends on _ the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to contro] or to predict” — as the redressability element does under the Seventh Circuit's reasoning — 21 it is the plaintiff's burden “to adduce facts showing that those choices ... will be made.” Lujan, 504 U.S. at 562 (quoting ASARCO Inc. v. Kadish, 490 U.S. 605, 615 (1989) (Kennedy, J.)). Here, no such facts were adduced to establish how the [IEPA would set the emission limitations in a new permit for the Benton plant. The Seventh Circuit based its inference that new emission limitations would be more stringent (by some unspecified amount) on the general trend of improving tech- nology, Pet. App. 12a, but this reliance was improper under this Court’s recent decision in Summers, 129 S. Ct. 1142. In Summers, this Court rejected the claim that the injury in fact element of standing could be satisfied based on “a statistical probability” that at least one of an organization’s members suffered an injury, rather than on individualized proof of injury. Td. at 1151-52. Here, the Seventh Circuit effectively relied on a statistical probability that any given PSD permit issued today would have more stringent emission lmitations than a permit issued in 2001, without any individualized proof that this would likely be true with respect to the Benton permit. Under Summers, however, elements of standing cannot be satisfied based on general probabilities; individualized proof is required.’ Even if a new permit for the Benton plant likely would contain more stringent emission limitations, the Seventh Circuit’s further inference that this ——- — — —_ —_— —_ — ’7The Seventh Circuit's apparent reliance on statements in McKasson's affidavit concerning the emission limitations contained in two other PSD permits issued by the IEPA in 2003 and 2005, Pet. App. 13a, ignores that each coal-fired power plant has unique characteristics and that these two permits therefore shed no light on the [EPA’s application of the BACT standard over time or to any particular plant 22 would redress the specific injury in fact that respondent alleges ~ harm to McKasson’s aesthetic and recreational interests — is even more speculative. It is pure conjecture whether any incremental reduction in emission levels from a new permit would even be perceptible to McKasson. See Lujan, 504 U.S. at 566 (plaintiff must make “a factual showing of perceptible harm”) (emphasis added). Even if perceptible, it is wholly speculative whether any such reduction would be of sufficient magnitude to eliminate or even reduce McKasson’s aesthetic and recreational concerns. Given her categorical concerns about the effects of the emissions from the Benton plant, as well as her concerns about the presence of the plant itself, it is far from “likely” that a new permit would alleviate her alleged fears that prompted this lawsuit. In sum, in contravention of the principles that this Court set forth in Summers, Lujan, Allen, and other decisions, the court of appeals improperly relied on a chain of speculation to conclude that the injunction . respondent seeks would remedy any alleged injury that is fairly traceable to the expired permit. See Lujan, 504 U.S. at 566 (“[s]tanding is not ‘an ingenious academic exercise in the conceivable”) (quoting United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 688 (1973)); see also Ogden Projects, Inc. v. New Morgan Landfill Company, Inc., 911 F. Supp. 863, ’ McKasson asserts in her affidavit that her concerns would be addressed if she and her family were exposed to “less” air pollution, MeKasson Aff. § 22, but this conclusory assertion cannot credibly establish that any decrease in an emission limitation for any pollutant — no matter how minute In absolute terms or in terms of human perceptibility — would redress her alleged injuries. 23 869-70 (E.D. Pa. 1996) (plaintiffs lacked standing to bring claim alleging that landfill owner constructed and operated landfill without requisite CAA permit where they offered “no evidence regarding the magnitude of the diminished air quality nor the specific direct effect, if any, that this diminished air quality will have on their health, environmental and recreational interests”; plaintiffs “summarily conclude that their health, environmental and recreational interests suffer injury, without filling in the blanks’). Moreover, the court of appeals’ approach to redressability fundamentally alters the nature of the permits that Congress provided for in the CAA. Power plant builders are willing to undertake the arduous process of obtaining a permit because once the permit process is closed, they can proceed with construction without further regulatory challenges so long as they follow the terms of the permit. But under the Seventh Circuit’s approach, private groups can bring endless challenges to issued permits based on improvements in pollution control technology. This wholly undermines the important role that the permitting process plays in ensuring certainty for builders and thereby weakens their incentive to make the necessary investments in the first instance. Individually and collectively, then, the Seventh Circuit's rulings on the elements of standing represent a significant departure from this Court’s holdings and will have significant adverse conse- quences. By failing to hold respondent to the specific showings and burdens of proof that this Court set out in Lujan and underscored in Summers, and instead relying on respondent’s mere assertion of harm to aesthetic and recreational interests and a chain of speculation, the court of appeals has significantly 24 diluted the standing requirements in the context of CAA citizen suits, particularly when those suits do not allege any violation or threatened violation of an environmental standard. As demonstrated below, this dilution of Article IJ] standing principles in the citizen suit context ignores the legitimate agenda that Congress has prescribed for citizen suit plaintiffs, which is to support, not supplant, agency authority. As a result, builders of complex energy projects, such as coal-fired power plants, will face the prospect of unbounded lawsuits by private groups such as respondent that assert challenges to their state-issued permits, even when the state and federal agencies have taken no action to invalidate the permits. Accordingly, the court of appeals’ misappli- cation of standing principles established by this Court warrants this Court’s review. Il. THE COURT OF APPEALS’ STANDING RULING POSES AN ISSUE OF FUNDA- MENTAL IMPORTANCE. The court of appeals’ dilution of this Court’s standing principles also presents a recurring and “important question” of federal law that warrants this Court’s attention. See Sup. Ct. R. 10(c). The court of appeals’ decision, if Jeft standing, will have enormous impact on CAA citizen suits in the Seventh Circuit as well as nationwide. By relaxing the Article III standing requirements in the context of citizen suits seeking injunctions against the construction of power plants based on challenges to the validity of the permits, the court of appeals’ decision invites private groups that oppose such plants to sue any and every time there is any conceivable issue with respect to a permit, regardless of whether the issue poses a realistic threat to — or 25 even has any bearing on — their members’ environ- mental interests. Such suits do nothing to hold responsible actual violators of environmental laws, but they have at least two significant harmful effects. First, the prospect of such lawsuits threatens the entire electric utility industry, which is a cornerstone of the nation’s economy. As petitioners learned first-hand in this case, the commencement of litigation is . often sufficient to stall projects that have been in the works for years. Indeed, the mere threat of litigation is often sufficient to do so. As a result, the evisceration of Article III standing principles in this context threatens to chill power plant builders from making the enormous investments that are necessary to undertake such projects in the first place, to the detriment of national efforts to develop domestic energy sources that will reduce dependence on foreign sources of energy. Faced with the likelihood of perpetual assaults on their projects arising from complex permitting regimes, few builders will be willing to pursue these projects. These projects, however, are critical to serving our. nation’s increasing energy needs and without them, the prospects for continued economic growth for future generations are uncertain. Second, the foregoing chilling effect is a predictable and inevitable consequence of private groups with self-serving agendas performing an enforcement and even prosecutorial role with respect to environmental! permits — a practice that the Seventh Circuit's relaxed standing standards invite and facilitate. As Justice Scalia noted in his dissent in Laidlaw, the relaxation of stancing principles in the context of citizen suits under the environmental statutes has the effect of “turn{ing] over to private citizens the 26 function of enforcing the law.” 528 U.S. at 209; see also id. at 197 (Kennedy, J., concurring) (“Difficult and fundamental questions are raised when we ask whether exactions of public fines by private litigants, and the delegation of Executive power which might be inferable from the authorization, are permissible in view of the responsibilities committed to the Executive by Article II of the Constitution of the United States.”). National organizations such as respondent “need not look long for an injured member” under the court of appeals’ approach, which leaves them free to exercise “significant discretion in choosing enforcement targets” and pursue suits “without meaningful public control.” Jd. at 209 (Scalia, J., dissenting). Given the threat of civil penalties and project-ending injunctions, citizen plaintiffs possess “massive bargaining power” with which to coerce settlements, id. at 210 (Scalia, J., dissenting), including in si‘uations where the public agencies would not have ¢ve ued their permit claims worth pursuing or even meritorious. These concerns about the displacement of public enforcement with private enforcement are _ not theoretical or farfetched: this is precisely what happened here. As noted, neither the IEPA nor the EPA has ever determined that the PSD permit has expired. Moreover, both agencies were actively investigating the validity of the permit at the time respondent filed suit, having requested that petition- ers produce thousands of pages of documentation relating to that issue. Those investigations came to an abrupt halt once respondent’s suit was filed, as did any possibility of petitioners moving forward with the project in which they had invested years of their time and millions of dollars. Accordingly, this lawsuit is a case study in private interest-driven litigation that 27 has proceeded without any meaningful public control, yet has resulted not only in an injunction prohibiting the construction of a much-needed and _ environ- mentally-sound power facility, but also the prospect of significant civil fines against its proponents. Under the Seventh Circuit’s decision, such suits will inevitably proliferate and more power plant builders will suffer the fate that petitioners have suffered (assuming that potential builders pursue such projects at all). Accordingly, the Seventh Circuit's standing ruling poses a question of fundamental importance that warrants this Court’s review. ) | CONCLUSION For the foregoing reasons, the petition for a writ of certiorari should be granted. Respectfully submitted, STEPHEN M. SOBLE CARTER G. PHILLIPS* SOBLE INTERNATIONAL JACQUELINE G. COOPER LAW, PLLC SIDLEY AUSTIN LLP 1201 Pennsylvania 1501 K Street, N.W. Avenue, N.W. Washington, D.C. 20005 Suite 500 (202) 736-8000 Washington, D.C. 20004 (202) 215-4320 Counsel for Petitioners April 20, 2009 * Counsel of Record APPENDIX la APPENDIX A UNITED STATES COURT OF APPEALS, SEVENTH CIRCUIT No. 06-4045 — SIERRA CLUB, Plaintiff-Appellee, Vv. FRANKLIN COUNTY POWER OF ILLINOIS, LLC, formerly known as EnviroPower of Illinois, LLC, EnviroPower, LLC, and Khanjee Holding (US), inc., Defendants-Appellants. Argued Oct. 29, 2007. Decided Oct. 27, 2008. Rehearing and Rehearing En Banc Denied Dec. 19, 2008 Before BAUER, RIPPLE, and WILLIAMS, Circuit Judges. WILLIAMS, Circuit Judge. Franklin County Power of Illinois, LLC, wants to build a coal power plant in southern Illinois. Because the plant will emit a significant amount of air pollu- tion, the Company must first obtain a “Prevention of Significant Deterioration” (PSD) permit from the Illinois Environmental Protection Agency (IEPA), the agency that the federal EPA has designated as the issuer of PSD permits in Illinois. Although the IEPA granted the Company a PSD permit in 2001, the 2a IEPA has since made a “preliminary determination” that the permit has expired. Sierra Club is a non-profit environmental organiza- tion that sought to enjoin the Company from building the power plant by bringing this suit against the Company, its parent company EnviroPower, LLC, and Khanjee Holding (US), Inc., under a citizen suit provision of the Clean Air Act. Sierra Club alleged that the Company’s 2001 PSD permit had expired because the Company had neglected to “commence construction” of the plant within an 18-month win- dow required under the permit. Sierra Club also claimed the permit was invalid under EPA regula- tions because the Company had discontinued con- struction of the plant for over 18 months. The district court agreed with Sierra Club on both points and granted summary judgment in its favor. The court also permanently enjoined the Company from build- ing the plant until it obtained a new PSD permit, and the defendants appealed to this court. We agree with the district court that Sierra Club has standing to pursue this lawsuit and that its claim is ripe and permissible under the Clean Air Act. We aiso agree that the 2001 PSD permit has expired and that the district court properly granted permanent injunctive relief in favor of Sierra Club. Therefore, we affirm the district court’s grant of summary judgment in favor of Sierra Club. 1. BACKGROUND A. Statutory and regulatory framework Sierra Club brought this suit under 42 U.S.C. § 7604(a)(3), a citizen suit provision of the Clean Air Act, which provides in relevant part: 3a [Alny person may commence a civil action on his own behalf... (3) against any person who proposes to con- struct or constructs any new or modified major emitting facility without a permit required under [42 USCS §§ 7470 et seq.] (relating to significant deterioration of air quality) . . . or who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of any condition of such permit. The parties agree that the coal power plant that the Company seeks to build is a “major emitting facility” that requires a PSD permit. Such a permit contains an emission limitation that is set by the IEPA and represents the “best available control technology” for pollution. See 42 U.S.C. § 7475(a). Once issued, a PSD permit can expire and become invalid in three different ways: fa] [I]f construction is not commenced within 18 months after receipt of such approval, [b] if construction is discontinued for a period of 18 months or more, or (c] if construction is not completed within a reasonable time. 40 C.F.R. § 52.21(r)(2). The IEPA Administrator “may extend the 18-month period upon a satisfactory showing that an extension is justified,” zd.; otherwise, the PSD permit terminates by “automatic expira- tion.” 40 C.F.R. § 124.5(g)(2) (“PSD permits may be terminated only by recission under § 52.21(w) or by automatic expiration under § 52.21(r)(2).”). 4a B. Factual background On August 15, 2000, the Company applied to the IEPA for a PSD permit to build a 600 megawatt’ coal-fired power plant in Benton, Illinois, on land for which it had a 99-year lease. The IEPA concluded the project would be a major air pollution source subject to PSD review. On July 3, 2001, the IEPA issued a PSD permit for the plant. The permit states it will become invalid if: construction of CFB [circulating fluidized bed] boilers is not commenced within 18 months after this permit becomes effective, if construction of these boilers is discontinued for a period of 18 months or more, or if construction of these boilers is not completed within a reasonable period of time. The permit defines “commence” and “construction” in terms of 40 C.F.R. § 52.21(b)(9) and § 52.21(b)(8), respectively, which are provisions we will discuss in more detail later. On December 2, 2002, the Company entered into an agreement with Black & Veatch (B & V), an engi- neering and construction company, that required the parties to “work together on an exclusive basis... in order to draft and negotiate the EPC (Engineering, Procurement and Construction] Contract.” On about December 18, 2002, the Company contracted with Alberici Constructors, Inc., for on-site excavation and foundation work. Alberici was to dig a hole at the site ‘Sierra Club claims the permit only authorized a 500 MW, not a 600 MW, facility. Because the defendants lost on summary judgment, we construe all facts in the light most favorable to them. See Rawoof v. Texor Petroleum Co,, 521 F.3d 750, 755 (7th Cir.2008). 5a down to the bedrock and pour concrete to lay part of the foundation for the plant. On January 3, 2003, four Alberici employees began delivering equipment to the site, and five days later, they began excavat- ing. On February 14, 2003, Alberici stopped the exca- vation after a dispute arose regarding payment. Alberici’s bills after that date include one day where workers showed up but did no work. All other days only include a supervisor’s hours spent maintaining a protective barricade around the site. In July 2004, the Company’s landlord had the hole refilled, apparently because the Company did not make a payment on its lease. In September 2004, the Company signed another contract for excavation and concrete work, which began anew on September 29, 2004. An IEPA inspector visited the plant site shortly thereafter and determined that construction had commenced. In the meantime, co-defendant Khanjee Holding (US), Inc. had obtained an option to buy the Com- pany and all its assets. In June 2008, Khanjee affirmed its obligation to adhere to the Company’s contract with B & V. In January 2004, the Company secured a mandate letter from its lead financial arranger indicating that financing for the project was available. On November 19, 2004, the TEPA notified the Company that it had “made a preliminary finding” that its PSD permit had expired. The Company challenged this preliminary determination and as far as we know, that matter remains pending before the IEPA. 6a On May 20, 2005, Sierra Club filed this suit, alleging that the 2001 PSD permit had expired and was invalid. The defendants moved to dismiss, claim- ing that the citizen suit provision of the Clean Air Act did not provide a basis for this suit. They also moved for summary judgment, claiming that Sierra Club lacked standing and that the permit was valid. Sierra Club countered with its own motion for summary judgment. The district court denied the defendants’ motions and found the permit to be invalid. It entered sum- mary judgment in Sierra Club's favor and perma- nently enjoined the defendants from building the plant until they obtained a valid permit. The defendants then filed this appeal. Il. ANALYSIS A. Sierra Club had standing. An organization has standing to sue if (1) at least one of its members would otherwise have standing; (2) the interests at stake in the litigation are germane to the organization’s purpose; and (3) nei- ther the claim asserted nor the relief requested requires an individual member’s participation in the lawsuit, See Friends of the Earth, Inc. v. Laidlaw Env'l Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)). The defendants do not seriously contest that Sierra Club satisfies prongs (2) and (3). Sierra Club is a nonprofit organization formed and operated to “preserve, pro- tect, and enhance the natural environment,” which is also its stated goal in bringing this lawsuit. The defendants also do not suggest this proceeding re- Ta quires an individual Sierra Club member to partici- pate; rather, they claim that Sierra Club has not presented an individual member with standing. So the dispute here turns on prong (1). To have standing, an individual must satisfy three requirements. First, she must have suffered an “injury in fact” that is both (a) concrete and particula- rized and (b) actual or imminent, not conjectural or hypothetical. Second, the injury must be fairly traceable to the challenged action. Third, it must be likely, not just speculative, that a favorable decision will redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Because these elements “are not mere pleading requirements but rather an indispensable part of the ... case, each element must be supported ... with the manner and degree of evidence required at the successive stages of the litigation.” Jd. at 561, 112 S.Ct. 2130. To survive a defendant’s motion for summary judg- ment (or to win on a cross-motion for summary judgment), a plaintiff cannot rely on mere allegations but must support each element by specific facts via affidavits or other evidence. See id. We review de novo the district court’s determination that Sierra Club has standing. See Disability Rights Wis. Inc. v. Walworth County Bd. of Supervisors, 522 F.3d 796, 800 (7th Cir.2008). 1. Sierra Club member Barbara McKasson will suffer injury in fact. Sierra Club relies on one of its members, Barbara McKasson, to establish standing. “[E]nvironmental] plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons 8a for whom the aesthetic and recreational values of the area will be lessened by the challenged activity.” Laidlaw, 528 U.S. at 183, 120 S.Ct. 693 (internal quotation marks omitted). McKasson states in an affidavit that she will experience diminished aes- thetic and recreational value if the Company con- structs and operates the power plant under the 2001 PSD permit. She explains that every other year since 1987, McKasson and her family have taken trips to fish, kayak, camp, and enjoy the natural beauty and clean environment of Rend Lake, located three miles from the proposed plant site. She claims if the Company builds the plant under the 2001 permit, she will cease her biennial recreational trips because the pollutants emitted based on the permit will harm her and diminish her aesthetic enjoyment of Rend Lake. The defendants claim that McKasson’s injury is insubstantial, but the “injury-in-fact necessary for standing ‘need not be large, an identifiable trifle will suffice.” LaFleur v. Whitman, 300 F.3d 256, 270 (2d Cir.2002) (quoting Sierra Club v, Cedar Point Oil Co., Inc., 73 F.3d 546, 557 (5th Cir.1996)); see also Doe v. County of Montgomery, 41 F.3d 1156, 1159 (7th Cir.1994) (“[A]n identifiable trifle is enough for standing to fight out a question of principle... .” (quoting United States v. Students Challenging Reg- ulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n. 14, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973))). If the proposed plant is built, McKasson will be exposed to emissions from the plant if she continues her longstanding tradition of visiting Rend Lake with her family. This “likely exposure” to pollutants is “cer- tainly something more than an ‘identifiable trifle,’ even if the ambient level of air quality does not exceed [certain national limits].” LaFleur, 300 F.3d at 270-71; see also Bensman v. United States Forest 9a Serv., 408 F.3d 945, 962-63 (7th Cir.2005) (individual had standing to challenge a proposed project in a national forest when he had visited the project area six times over 20 years and planned to return soon). Moreover, if McKasson foregoes her regular visits to the lake because of these pollutants, that would also constitute an injury-in-fact. See Laidlaw, 528 U.S. at 183, 120 S.Ct. 693 (individual’s affidavit stating that he foregoes using a river for recreational purposes because of pollution concerns was sufficient to show injury-in-fact); see also Buono v. Norton, 371 F.3d 543, 547 (9th Cir.2004) (“We have repeatedly held that inability to unreservedly use public land suffices as injury-in-fact.”). McKasson’s injuries are also ones that are “concrete and particularized” because they affect her in a “personal and individual way.” See Lujan, 504 U.S. at 560 & n. 1, 112 S.Ct. 2130; Coalition for the Env’t v. Volpe, 504 F.2d 156, 167 (8th Cir.1974) (holding that a proposed development that would increase pollution and traffic and limit plaintiffs’ views was a cognizable injury that deprived plaintiffs of aesthetic and psychological benefit). The defendants also argue that because the plant will take years to build, McKasson’s injury is not “actual or imminent” and does not meet the second requirement for injury in fact. But the defendants forget that threatened injury can satisfy Article III standing requirements. See Babbitt v. United Farm Workers Nati Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) (““[O]ne does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending that is enough.”); see also Massachusetts vu. EPA, 549 U.S. 497, 127 S.Ct. 1438, 1455, 167 L.Ed.2d 248 (2007) (EPA’s refusal to regulate green- house gas emissions presented an imminent risk of 10a harm); MainStreet Org. of Realtors v. Calumet City, 505 F.3d 742, 744 (7th Cir.2007) (“[S)tanding in the Article III sense does not require a certainty or even a very high probability that the plaintiff is complain- ing about a real injury, suffered or threatened.”). The Compan); claims that the PSD permit that it received is still vad, and it (strenuously) argues that it has actually begun construction of the plant. As a prac- tical matter, it makes sense for Sierra Club to challenge the validity of the Company’s permit now, rather than waiting until the plant is operational. See LaFleur, 300 F.3d at 270 (likely exposure to emis- sions from a proposed but not yet built facility was “certainly an injury-in-fact”). Moreover, while this suit has been pending, the Company has again pub- licly announced its commitment to completing the plant. So “[(t}his is not a case of some abstract psychic harm or a one-day-J’ll-be-hurt allegation. ; MainStreet, 505 F.3d at 745. Injury to McKasson has been freshly threatened and is not merely hypo- thetical. 2. The injury is traceable to the proposed construction under the 2001 permit. Sierra Club must also demonstrate that McKasson’s injury is “fairly traceable” to the Company’s construc- tion of the plant under the 2001 PSD permit. See Texas Indep. Producers & Royalty Owners Ass’n v. EPA, 410 F.3d 964, 972 (7th Cir.2005). If tne “independent action of some third party not before the court” causes McKasson’s injury, then the com- plaint fails the traceability test. /d. (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130) (internal quotation marks omitted). The defendants concede that under the 2001 PSD permit the proposed plant will emit airborne pollu- lla tants, including mercury and particulate matter, three miles from Rend Lake. McKasson claims these pollutants and the resulting decrease in visibility will negatively impact her enjoyment of the lake. We agree that “[w]here a plaintiff has pointed to a pollut- ing source as the seed of his injury, and the owner of the polluting source has supplied no alternative culprit, the ‘fairly traceable’ requirement can be said to be fairly met.” Friends of the Earth v. Gaston Copper Recycling Corp., 204 F.3d 149, 162 (4th Cir.2000). Here, the defendants point to no other polluting source that could be the cause of McKasson’s injury. Nonetheless, the defendants claim Sierra Club still cannot show causation because the Company has designed its plant to produce emissions below permit- ted levels, so until the plant is built, there remains a factual question whether McKasson will actually be injured. This argument is in essence just a varia- tion on the defendants’ claim (rejected above) that McKasson has not yet suffered an “actual” or “immi- nent” injury. We agree that no one knows the ulti- mate magnitude of McKasson’s injury—for example, we don’t know if the particulate matter from the plant will blot out the sky or merely create a thin haze that’s not visible to the naked eye, or if the airborne mercury will actually spread 45 miles to poison fish that McKasson currently consumes from a pond near her home (which is another harm she claims she will suffer). We do know, however, that the plant will release some pollutants and that McKasson believes these pollutants will ruin her ability to enjoy Rend Lake and taint the surrounding area. And her belief is not so irrational that it can simply be discredited. See Laidlaw, 528 U.S. at 182- 83, 120 S.Ct. 693 (finding that a local citizens group J 20 member suffered injury in fact because she believed that discharged pollutants had lowered her home’s value). Because McKasson’s injury stems from the emissions of the Company’s proposed plant, we find that her threatened injury is fairly traceable to the plant. 3. Enjoining the Company from building based on its 2001 permit would likely redress McKasson’s injury. Finally, a plaintiff must show that a favorable deci- sion will likely, not just speculatively, relieve her injury. 7d. at 181, 120 S.Ct. 693. The defendants contend that the IEPA might not set lower emissions levels for a new PSD permit and that McKasson’s concerns might remain even if the plant polluted at lower emission levels. The defendants’ argument, of course, presumes that the Company will actually seek out and receive a new permit. Despite publicly announcing that it would seek a new permit after it lost in the district court, the Company represented at oral argument that it had not yet begun this process. And even if the Company applied for and received a new permit, there would be some delay (the IEPA took almost a year before granting the 2001 permit) before the Company could begin construction. A decision in favor of Sierra Club, therefore, would at least redress McKasson’s injury during that time. Moreover, as Sierra Club notes, pollution control technology tends to improve over time, so it makes sense that a new permit would have more stringent emission standards than the 2001 permit. See 42 U.S.C. § 7475(a)(4) (major-emitting facilities must use the best available control technology to receive l3a PSD permits); In re W. Suburban Recycling and Energy Ctr., L.P., 8 E.A.D. 192 (EPA App. Bd.1999). Indeed, the record indicates that the IEPA issued PSD permits in 2003 and 2005 for similar coal-fired power plants with emission standards that were significantly -more stringent than those in the Company’s 2001 permit. It is therefore reasonable to believe that any new permit the Company obtains will have tougher emission standards than the 2001 PSD permit. We need not determine exactly how much tougher those standards will be because McKasson need not show that a favorable decision will re: ve her every injury. Massachusetts, 127 S.Ct. at 1458 (citing Larson v. Valente, 456 U.S. 228, 244 n. 15, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982)). It is enough that her concerns will be addressed if more stringent emission standards are imposed than those required under the 2001 permit, even though the plant will still emit some pollutants if the Company obtains a new PSD permit. See id. at 1458 n. 23 (“{[E]ven a small probability of injury is sufficient to create a case or controversy ... provided of course that the relief sought would, if granted, reduce the probability.” (quoting Vill. of Elk Grove Vill. v. Evans, 997 F.2d 328, 329 (7th Cir.1993))). So it is likely that a favorable decision here will redress McKasson’s, and hence Sierra Club’s, injury. Therefore, we conclude that Sierra Club has orga- nizational standing to pursue this suit because it has shown that the Company’s construction under the expired 2001 PSD permit would cause at least one of its members‘ to suffer injury in fact that is traceable a * Sierra Club has another “standing plaintiff but like the distmct court, we find it unnecessary to address her claims because McKasson has standing to sue. 14a to the Company and is redressable if Sierra Club prevails here. B. Sierra Club’s claim is ripe and permissible under 42 U.S.C. § 7604(a)(3). The defendants rely on two district court decisions to argue that Sierra Club’s claim is not ripe. See United States v. Ill. Power Co., 245 F.Supp.2d 951, 956-57 (S.D.111.2003); New York v. Niagara Mohawk Power Corp., 263 F.Supp.2d 650, 661 (W.D.N.Y.2003). The defendants contend that Sierra Club must wait until the Company actually bezins constructing the plant before Sierra Club can allege that the Company has violated its preconstruction PSD permit. The defendants misread these cases, which specify when the limitations period begins for claims that a company has violated a preconstruction permitting requirement. In that context, it makes sense to con- clude that the last possible moment at which a preconstruction violation occurs is “when the actual construction is commenced, and not at some later point in time.” J/l. Power Co., 245 F.Supp.2d at 957; see Niagara Mohawk Power Corp., 263 F.Supp.2d at 661-62. But it does not logically follow (nor do these cases suggest) that a preconstruction permit violation cannot occur until actual construction begins. The defendants also argue that the citizen suit provision that Sierra Club relies upon, section 7604(a)(3), only allows suits against entities that are “without a permit,” so Sierra Club cannot bring this suit because the Company received a permit (albeit one that may no longer be valid). The defendants cite no direct support for this position, instead claiming the matter is not ripe and cannot be adjudicated until 15a the IEPA issues a final decision whether the Com- pany’s 2001 permit has expired. The defendants’ argument ignores the explicit lan- guage of section 7604(a)(3). That provision states that “any person may commence a civil action on his own behalf... against any person... who is alleged... to be in violation of any condition of [a PSD] permit.” The Company certainly is a person alleged to be in violation of a PSD permit—Sierra Club alleges that the Company violated the terms of its permit by not commencing construction of its facility in a timely fashion, which in turn caused the permit to expire. See 40 C.F.R. § 124.5(g)(2). And the IEPA made the same allegation when it preliminarily found that the Company’s permit had expired. Moreover, even if having an expired permit were akin to having no permit at all, Sierra Club would still be able to sue under section 7604(a)(3), which enables citizens to sue entities like the Company that “propose/ / to con- struct ... new or modified major emitting facilit[ies] without a [PSD] permit.” 42 U.S.C. § 7604(a)(3) (em- phasis added). It is irrelevant that the IEPA has yet to finish deciding whether the Company’s permit is invalid because that’s not what section 7604(a)(3) requires. In a circuit case referenced by both parties, Grand Canyon Trust v. Tucson Elec. Power Co., 391 F.3d 979, 986 (9th Cir.2004), the Ninth Circuit held that a district court had jurisdiction over a citizen suit that challenged the validity of a permit even though the EPA had not yet acted to revoke the permit. The defendants claim Grand Canyon analyzed a different citizen suit provision than the one at issue here. That seems doubtful. See id. at 985 (“Unauthorized con- struction of a power plant violates the Clean Air Act 16a and provides grounds for a citizen suit under the Act’s citizen suit provision. See 42 U.S.C. § 7604(a)(3) ... ”). Regardless, Grand Canyon does not suggest there is a categorical rule requiring a plaintiff to wait until the relevant agency finishes deciding whether a permit is valid (at least when, as here, a suit is not asking us to review an agency action). So in accor- dance with the plain language of section 7604(a)(3), we find that Sierra Club has properly brought this suit under that provision. C. The Company did not “commence construction” of the plant. As noted above, a PSD permit can expire and become invalid in one of three ways: (1) if construc- tion is not “commenced” within 18 months after receipt of the permit, (2) if construction is discontin- ved for a period of 18 months or more after construction has begun, or (3) if construction is not completed within a reasonable time. See 40 C.F.R. § 52.21(r)(2). Similarly, the Company’s PSD permit stated it would become invalid if: construction of CFB [circulating fluidized bed] boilers is not commenced within 18 months after this permit becomes effective, if construction of these boilers is discontinued for a period of 18 months or more, or if construction of these boi- lers is not completed within a reasonable period of time. The permit issued on July 3, 2001, so its drop-dead date was January 3, 2003.° The question is whether ° The defendants argued before the district court that the Company was entitled to various extensions and grace periods, thereby delaying the deadline to February 10, 2003. While the district court did not decide whether this was correct, it noted l7a the Company “commenced” construction of its plant by that deadline. 42 U.S.C. § 7479(2)(A) states there are two ways in which construction can “commence”: (i) {the owner or operator has} begun, or caused to begin, a continuous program of physical on- site construction of the facility or (ii) [the owner or operator has] entered into binding agreements or contractual obligations, which cannot be canceled or modified without substantial loss to the owner or operator, to undertake a program of construction of the facil- ity to be completed within a reasonable time. See also 40 C.F.R. § 52.21(b)(9) (defining “{c]lommence as applied to construction” similarly). The district court concluded the Company had neither com- menced a program of actual construction nor entered into a binding agreement to undertake such a pro- gram. The district court also found that even if the Company had begun constructing the plant, it had lapsed in its construction activity for more than 18 months, thereby invalidating the PSD permit. On appeal, the defendants assert there are genuine - factual disputes that should have prevented the district court from granting summary judgment to Sierra Club. We review the district court’s grant of summary judgment de novo and construe all facts in the light most favorable to the defendants. See Rawoof v. Texor Petroleum Co., 521 F.3d 750, 755 (7th Cir. 2008). that the defendants lost even under the February 10 date. The defendants do not re-argue these extensions on appeal, so the January 3, 2003, deadline is the operative one. 18a 1. No reasonable factfinder could find that the Company had started a timely program of actual construction or engaged in construction activities without an impermissible lapse. The defendants claim that the Company prevented its 2001 PSD permit from expiring by beginning “a continuous program of actua] construction” that included “conducting engineering studies [and] exca- vation work.” We disagree. The EPA defines “begin actual construction” as: [In general, initiatton of physical on-site con- struction activities on an emissions unit which are of a permanent nature. Such activities in- clude, but are not limited to, installation of building supports and foundations, laying under- ground pipework and construction of permanent storage structures. With respect to a change in method of operations, this term refers to those on-site activities other than preparatory activities which mark the initiation of the change. 40 C.F.R. § 52.21(b\(11) (emphases added); see also 40 C.F.R. § 52.21(b)2) (defining “construction” as “any physical change or change in the method of operation (including fabrication, erection, installation, demoli- tion, or modification of an emissions unit) that would result in a change in emissions”). We acknowledge (as the defendants strenuously argue) that beginning actual construction might be something slightly dif- ferent than beginning a continuous program of physical on-site construction, as required under 42 U.S.C. § 7479(2)(A)G). But the Company did not engage in any kind of permanent construction activ- ity at all. As of the PSD permit’s expiration date of January 3, 2003, the Company had laid no founda- 19a tion and constructed no building supports, under- ground pipework, or permanent storage structures. Importantly, the Company had not begun construct- ing the CFB boilers, which was something that the PSD permit had explicitly required that the Company do before January 3. Indeed, the only construction activity performed by the Company was that it had directed Alberici Constructors to dig a hole, which Alberici began to do on January 8. Alberici’s minimal work hardly heralded the start of a “continuous program” of actual construction, as Alberici stopped digging the hole on February 14, 2003, after a pay- ment dispute. And digging the hole was not construc- tion activity “of a permanent nature,” as the Com- pany’s landlord later had the hole refilled. Our conclusion here is further buttressed by a July 1, 1978, memorandum sent by Edward E. Reich, Director of Stationary Source Enforcement at the EPA, and entitled “Commence Construction’ Under PSD” (the “Reich Memorandum”).* In addressing what constitutes physical on-site construction, the * While the EPA did not promulgate the Reich Memorandum as part of its rulemaking authority, an “agency’s interpretation {of its own regulations} must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994) (internal quotation marks omit- ted). Indeed, “it can still be apparent from the agency’s gener- ally conferred authority and other statutory circumstances that Congress would expect the agency to be able to speak with the force of law when it addresses ambiguity in the statute or fills a space in the enacted law, even one about which ‘Congress did not actually have an intent’ as to a particular result.” United States v. Mead Corp., 533 U.S. 218, 229, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (quoting Chevron, USA, Inc. v. NRDC, Inc., 467 U.S. 837, 845, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). 20a Reich Memorandum specifically notes that “{a]ctivities such as site clearing and excavation work will gener- ally not satisfy the commence construction require- ments.” Reich Memorandum (“As stated in the preamble to the draft regulations, ‘it will not suffice merely to have begun erection of auxiliary buildings or construction sheds unless there is clear evidence (through contracts or otherwise) that construction of the entire facility will definitely go forward in a continuous manner’.”). The defendants have provided no reason why we should ignore the EPA’s guidance on this issue or why this case is a special one that merits ignoring this general rule. Finally, we note that even if the Company had “com- menced construction” of the plant, it lapsed in con- struction for over 18 months, thereby invalidating its PSD permit. After Alberici stopped digging on February 14, 2003, it performed no more excavation work at the site. Indeed, the site appears to have lain dormant for over 19 months until September 29, 2004, when another company began digging a second hole for the Company. This 19-month lapse in con- struction activity killed the Company’s PSD permit. See 40 C.F.R. §§ 52.21(r)(2), 124.5(g)(2). 2. No reasonable factfinder could find that the Company had timely entered a binding contract to undertake a program of actual construction. The defendants alternatively claim that the Com- pany had “commenced construction” within 18 months of the permit’s issuance by signing a “construction memorandum” with B & V in late 2002, thereby requiring those parties to “work together on an exclusive basis ... in order to draft and negotiate the EPC |Engineering, Procurement and Construction] Contract.” To count as a contract that commenced 2la construction, the construction memorandum would have to be one “which [could not] be canceled or modified without substantial loss to the owner or operator, to undertake a program of construction of the facility to be completed within a reasonable time.” 42 U.S.C. § 7479(2)(A\ii). Even if entering the construction memorandum counted as “commencing construction” of the power plant, the Company’s permit expired because of the 19-month lapse between February 2003 and Septem- ber 2004 in which the Company did no construction work on the facility. See supra II(C)(1). The Company would have to argue (which it doesn’t) that the con- struction memorandum somehow prevented this 19- month lapse from killing the permit. But such an interpretation would in effect allow a PSD permittee to trump the 18-month lapse provision and in- definitely delay the construction of a facility so long as the permittee has entered a contract that “com- mences construction.” We see no basis for reading the EPA regulations in this manner. See 40 C.F.R. § 52.21(r)(2) (noting that a PSD permit expires “if construction is discontinued for a period of 18 months or more” or “if construction is not completed within a reasonable time”); see also 40 C.F.R. § 52.21(b)(8); Reich Memorandum (“In order to assure that con- struction proceeds in a continuous manner and is completed within a reasonable time, the regulations require that a break in construction of greater than 18 months or failure to commence construction with- in 18 months of PSD permit issuance will generally invalidate a source’s PSD permit.”). At any rate (as we discuss below), the Company’s signing of the construction memorandum did not “commence construction” of the power plant. Before 22a we interpret the memorandum, however, we note that the parties disagree on which jurisdiction’s law we should apply. Sierra Club claims we should follow a choice of law provision in the construction memo- randum, which specifies that the agreement is to be interpreted “in accordance with the substantive law of the State of New York, except for its choice of laws provisions.” See Am. Fuel Corp. v. Utah Energy Dev. Co., Inc., 122 F.3d 130, 184 (2d Cir.1997) (“[Wlhere the parties have agreed to the application of the forum law, their consent concludes the choice of law inquiry.”). The defendants counter that an Illinois statute renders the memorandum’s choice of law provision void and points us to Illinois law: See 815 Ill. Comp. Stat. Ann. 665/10 (2008) (“A provision con- tained in or executed in connection with a building and construction contract to be performed in Illinois that makes the contract subject to the laws of another state ... is against public policy. Such a provision is void and unenforceable.”). We need not decide who is right because both New York and Illinois law® would characterize the ° The defendants suggest that a “third alternative” would be to apply federa) common law in interpreting the contract, but they don’t explain why that alternative should apply here. The two primary cases they cite involved contracts in which the federal government was a party. See United States v. Seckinger, 397 U.S. 208, 209-10, 90 S.Ct. 880, 25 L.Ed.2d 224 (1970) (“|Flederal law controls the interpretation of [a] contract .. . entered into pursuant to authority conferred by federal statute and, ultimately, by the Constitution.”); Funeral Fin. Sys. v. United States, 234 F.3d 1015, 1018 (7th Cir.2000) (“Interpreting the meaning of a provision in a federal government contract is a matter of federal common law... .”). That’s a materially differ- ent situation from what we have here. The defendants also note that federal common law can be applied when “necessary to protect uniquely federal) interests,” but they don’t explain why 23a construction memorandum as_ a_ preliminary agreement that required the parties to conduct further negotiations, not a construction contract to build a power plant. New York law recognizes that parties can enter into precisely this kind of preliminary agreement: The parties agree on certain major terms, but leave other terms open for further negotiation... . (This type of agreement] ‘does not commit the parties to their ultimate contractual objective but rather to the obligation to negotiate the open issues in good faith in an attempt to reach the... objective within the agreed framework.’ A party to such a binding preliminary commitment has no right to demand performance of the transac- tion. Adjustrite Sys. v. GAB Bus. Servs., 145 F.3d 543, 548 (2d Cir.1998) (quoting Teachers Ins. & Annuity Assoc. of Am. v. Tribune Co., 670 F.Supp. 491, 498 (S.D.N.Y.1987)). Similarly, “Ulinois law recognizes the prerogative to agree to further negotiations, even after most essential contract terms have been settled, while remaining free to back out of a pending deal until the occurrence of some later event.” Venture Assoc. Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 432 (7th Cir.1993). Here, the construction memorandum was merely a preliminary step toward the parties’ ultimate goal- agreeing on an EPC contract for building the power plant. Contrary to the defendants’ claim that the such federal interests are present here, or why we should dis- regard both the contracting parties’ choice of law (New York law) and the preference indicated by the Illinois statute (Illinois law), particularly when both point to the same outcome. 24a memorandum required the parties to “undertake a program of construction of the facility,” the memoran- dum only required the parties to work together to- ward reaching an actual construction agreement. The memorandum specified that the parties would “agree to work with each other in good faith . . . to complete the drafting and negotiation of the EPC CONTRACT, with the goal of agreeing and signing such EPC CONTRACT by September 1, 2005.” The memoran- dum was clear that it did not enable the Company to demand that B & V perform construction work: “The PARTIES agree that upon Termination of the CONSTRUCTION MEMORANDUM, CONTRACTOR shall have no liability to perform the EPC Work Scope for the FCP [Franklin County Power] PROJECT for the OWNER.” Moreover, the memorandum was hardly a final agreement for building the plant as it noted that B & V was “continuing to develop a firm price and Draft EPC Contract” for the project. The construction memorandum also listed various events that could terminate the agreement, but none of these events was anything like “completing con- struction of the plant” or “finishing the construction project,” which would have suggested that the con- struction memorandum was the contract for building the plant. Rather, the terminating events included “(t]he date of signature of the EPC CONTRACT for the FCP PROJECT” and the “[flailure of the PAR- TIES to reach agreement on an EPC Contract by September 1, 2005 or such later date as may be agreed in writing by the PARTIES,” which again indicate that the construction memorandum was just a preliminary agreement en route to an EPC con- tract. 25a Even if the language of the construction memoran- dum was unclear, extrinsic evidence (which the defendants encourage us to utilize) would support the same conclusion. As of January 2006, after the con- struction memorandum had expired, the parties still had not agreed on a price term——while the term sheet contemplates a price of $615 million for the EPC contract, B & V advised the Company on January 10, 2006, that the project would be in the “$710m plus range.” B & V also told the Company that the project would require 45 months or more to completion, not the Company’s target of 32 months, and advised the latter, “If you can find someone competent who will do the project for $615m and 32 months you must go ahead and work with them.” These facts indicate that the construction memorandum was not a contract to build the actual plant. The defendants also claim that the construction memorandum’s $72 million termination fee (which they represented at oral argument that they would have to pay if they lost this suit) indicates that this was a contract to construct the power plant. This fee appears to be less than 10% of the total project cost, which was estimated by the defendants at oral argu- ment to be between $750 million and $1 billion. See Reich Memorandum (“A Contractual obligation for purposes of commencing construction must also be one which cannot be cancelled or modified without substantial loss. .. . Whether a loss of less than or equal to 10% of the total project cost will be consi- dered substantial will be determined on a case by case basis.”). At any rate, the existence of this fee doesn’t affect our conclusion that the memorandum is just a pre- liminary agreement requiring the parties to conduct 26a further negotiations. Cf. id. (“[Cjontracts for non site specific equipment, such as boilers, will typically not suffice, regardless of any penalty clauses contained in the contracts.”). Indeed, we have previously noted that parties often include these kinds of termination fees in preliminary agreements: The process of negotiating multimillion dollar transactions .. . often is costly and time-consum- ing. The parties may want assurance that their investments in time and money and effort will not be wiped out by the other party’s footdrag- ging or change of heart or taking advantage of a vulnerable position created by the negotiation. . . . [Tlhey might prefer to create [a contractual remedy] in the form of a deposit or drop fee (what in publishing is called a “kill fee”), rather than rely on a vague duty to bargain in good faith... . Venture Assocs. Corp. v. Zenith Data Systems Corp., 96 F.3d 275, 278 (7th Cir.1996) (internal citations omitted). So the presence of this fee does not imply that the construction memorandum was a contract to build the power plant. Damages for breach of an agreement to negotiate may be, although they are unlikely to be, the same as the damages for breach of the final contract that the parties would have signed. .. . Finally, the defendants contend that the use of the word “program” in “program of construction” suggests that we should interpret more broadly which con- struction contracts count as “commencing construc- tion” and not limit ourselves to contracts for actual construction of a facility. We are not so sure. Cf. Sierra Pac. Power Co. v. EPA, 647 F.2d 60, 67 (9th Cir.1981) (citing United States v. City of Painesville, 27a 431 F.Supp. 496, 500 n. 5 (N.D.Ohio 1977), affd, 644 F.2d 1186 (6th Cir.1981)) (approving the EPA’s deci- sion not to read the word “program” broadly to include planning and design of a unit). But at any rate, the construction memorandum was not a con- tract for a “program” of construction activity. As the Reich Memorandum notes, “In order to satisfy the commence construction requirements, a contractual obligation must be for a site specific commitment. The types of activities which will be considered site specific for purposes of a contract are identified in question # 1 [‘placement, assembly, or installation of materials, equipment, or facilities which will make up part of the ultimate structure of the source’}.” Here, the construction memorandum did not require B & V to do any site-specific construction (or even any nonsite-specific construction). It was, to reiterate, just a contract that required the parties to work toward an EPC agreement. And the Reich Memoran- dum indicates that entering this kind of contract is simply not enough to “commence construction.” This conclusion makes sense. Time limits prevent companies from sitting on PSD permits for an unrea- sonably long period of time. Presumably these requirements help ensure that major emitting facili- ties comply with up-to-date emissions regulations and do not construct today’s facilities with yester- day’s technology. Reading the phrase “program of construction” so broadly as to encompass the con- struction memorandum would greatly extend the time that companies could delay the actual construc- tion process. We decline to adopt that interpretation here. 28a D. The district court did not err in granting injunctive relief in favor of Sierra Club. The defendants also challenge on two grounds the district court’s decision to grant injunctive relief in favor of Sierra Club. First, the defendants claim the district court lacked jurisdiction to grant an injunc- tion because, according to them, a civil penalty is the sole remedy for the citizen suit here. The defendants rely on language at the end of 42 U.S.C. § 7604(a) (emphases added): The district courts shall have jurisdiction, with- out regard to the amount in controversy or the citizenship of the parties, to enforce such an emission standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties (except for actions under paragraph (2)). The defendants claim the first two remedies em- phasized above correlate with sections 42 U.S.C. §§ 7604(a)(1) and (a)(2), respectively, and the third remedy (i.e., “civil penalties”) applies to 42 U.S.C. § 7604(a)(3), the provision at issue in this citizen suit. Specifically, the defendants contend that the district court could only award civil penalties and not an injunction as a remedy for Sierra Club’s section 7604(a)(3) suit here. The defendants’ argument lacks merit. The statute does not state that the three remedies listed above are exclusively available for suits that are brought under their “corresponding” statutory subsections. In fact, the statute suggests just the opposite when it states that the third remedy (“any appropriate civil penalties”) is not available for “actions under para- 29a graph (2) [section 7604(a)(2)],” which implies that this remedy is available for actions under sections 7604(aX(1) and 7604(a)(3). Moreover, the defendants have not cited (and we have not found) any case law that has interpreted the provision in the manner that they propose. Sierra Club, on the other hand, can point to at least one case that directly contradicts the defendants’ position. See United States v. Am. Elec. Power Serv. Corp., 137 F.Supp.2d 1060, 1067 (S.D.Ohio 2001). Although this district court case is not binding on us, we agree that “a plain reading of the statute” implies “that the [injunctive remedies provision] applies to actions under [section 7604i(a)(3).” Jd. The defendants also claim the district court erred by not performing the standard four-part analysis that precedes an award of injunctive relief. That analysis generally requires a court to consider (1) whether the plaintiff has suffered or will suffer irreparable injury, (2) whether there are inadequate remedies available at law to compensate for the injury, (3) the balance of hardships, and (4) the public interest. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 126 S.Ct. 1837, 1839, 164 L.Ed.2d 641 (2006); e360 Insight v. The Spamhaus Project, 500 F.3d 594, 604 (7th Cir.2007). We review the district court’s entry of such an injunction for an abuse of discretion. e360, 500 F.3d at 603. Circuit courts have upheld orders granting injunc- tive relief where a distmct court did not perform a complete four-part analysis when a plaintiff prevailed on the merits of his claim, see Fogie v. THORN Americas, Inc., 95 F.3d 645, 654 (8th Cir.1996), or when, in an action for a statutory injunction, a viola- tion was demonstrated and there was a reasonable 30a likelihood of future violations, see United States v. Kaun, 827 F.2d 1144, 1148 (7th Cir.1987). Moreover, “fijt 1s an accepted equitable principle that a court does not have to balance the equities in a case where the defendant’s conduct has been willful.” EPA v. Envutl. Waste Control, 917 F.2d 327, 332 (7th Cir.1990). Sierra Club latches on to this last exception, claiming that the Company has engaged in willful misconduct by persisting in its “proposal to construct this Project without a valid permit.” But Sierra Club cites no authority to explain how the Company’s persistence constitutes willful misconduct. The Com- pany need not roll over and concede that its permit is invalid—indeed, that’s what this litigation is all about. Unlike cases in which defendants flaunted environmental laws by, for example, not implement- ing control systems for hazardous wastes, see United States v. Bethlehem Steel Corp., 38 F.3d 862, 865, 867-68 (7th Cir.1994), the Company here is simply defending the validity of its permit in court. And the Company’s arguments are not so frivolous as to make us believe that its defense is akin to some kind of malicious intransigence. Still, we need not remand this case for the district court to explicitly analyze the injunctive relief fac- tors. The court found that the Company did not have a valid PSD permit when it granted Sierra Club’s motion for summary judgment. Because EPA regula- tions require the Company to obtain such a permit before it can build the facility, 42 U.S.C. § 7475(a)(1), the court’s decision leaves the Company no option but to obtain this permit before it can commence con- struction. So the court’s injunction, which prohibits the Company from “actual construction of the Plant 3la until [it has} obtained a valid PSD permit,” is essen- tially the same as the court’s finding on the merits. See Fogie, 95 F.3d at 654 (holding that by prevailing on the merits of its claim, “the plaintiff class has demonstrated that the four factors of this test overwhelmingly militate in favor of an injunction”). Moreover, this is not a case where a plaintiff sued an already-operational facility and claimed it was polluting in excess of permissible limits. In such a situation, a district court would likely need to balance equities before it granted injunctive relief and shut down the facility. See Harrison v. Indiana Auto Shredders Co., 528 F.2d 1107, 1123 (7th Cir.1975). Here, the only cost to the Company of the injunction is that it must now obtain a new permit before it can build, which was already implicit in the court’s decision granting summary judgment. Additionally, the record here demonstrates that the four injunctive relief factors favor Sierra Club. First, Sierra Club will likely suffer irreparable injury if the Company builds under its expired PSD permit rather than a new permit because the former likely includes more relaxed emission standards. See supra section II(A)(3); Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545, 107 S.Ct. 13896, 94 L.Ed.2d 542 (1987) (environmental injuries are “often permanent or at least of long duration, i.e., irreparable”). Second, legal remedies will not adequately address Sierra Club’s injury. The record shows that at least one Sierra Club member will likely suffer a decrease in recrea- tional and aesthetic enjoyment of Rend Lake if the plant is built according to the 2001 permit. An economic award would not sufficiently compensate for this injury. See Amoco, 480 U.S. at 545, 107 S.Ct. 1396 (“Environmental injury, by its nature, can 32a seldom be adequately remedied by money dam- ages. ...”); Envtl. Waste Control, 917 F.2d at 332. Third, the balance of harms favors issuing an in- junction. An injunction protects Sierra Club from irreparable injury while simply requiring the Com- pany to defer construction until it obtains a permit that complies with the Clean Air Act. Finally, the record contains no evidence that the injunction harms the public interest. In fact, based on the record before us, we agree with Sierra Club that requiring the Company to obtain a valid PSD permit would likely result in decreased emissions and improved public health, which would further a stated goal of the Clean Air Act. See 42 U.S.C. § 7401(b)(1) (“to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its popula- tion”). Although in most instances we would remand a case when a district court did not clearly explain why it granted injunctive relief, see e360, 500 F.3d at 604, we need not remand here because the court’s decision on the merits essentially embraced the remedy and the injunctive relief factors favor Sierra Club. A remand on this issue would merely prolong the case, result in additional costs, and not change the out- come. Cf. Books v. Chater, 91 F.3d 972, 978 (7th Cir.1996); DiLeo v. Ernst & Young, 901 F.2d 624, 626 (7th Cir.1990). lil. CONCLUSION The judgment of the district court is AFFIRMED. 33a APPENDIX B IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS Case No. 05-cv-4095-JPG SIERRA CLUB, Plaintiff, VS. FRANKLIN COUNTY POWER OF ILLINOIS, LLC f/k/a ENVIROPOWER OF ILLINOIS, LLC; ENVIROPOWER, LLC; and KHANJEE HOLDING (US) INC., Defendants. MEMORANDUM AND ORDER This matter comes before the Court on the cross motions for summary judgment filed by plaintiff the Sierra Club (Doc. 51) and defendants Franklin County Power of Illinois, LLC (“FCP”), EnviroPower, LLC (“EnviroPower”) and Khanjee Holding (US) Inc. (“Khanjee”) (Doc. 63). The parties have responded to the respective motions (Docs. 90 & 93), and replied to the respective responses (Docs. 96 & 97). In conjunc- tion with the parties’ summary judgment motions, the Court considers the Sierra Club’s motion to strike (Doc. 72) and the defendants’ response (Doc. 74), the defendants’ motion to exclude testimony (Doc. 77) and the plaintiff's response (Doc. 82), and the defen dants’ motion to strike (Doc. 78), the plaintiff's re- sponse (Doc. 83) and the defendants’ reply (Doc. 88). The Court also considers the defendants’ motion to dismiss (Doc. 65), to which the Sierra Club has re- 34a sponded (Doc. 92), and to which the defendants have replied (Doc. 98). The Sierra Club believes that the defendants are proposing to construct a power plant in Benton, Illi- nois, (“Plant”) without a required permit. They bring this suit under the citizen suit provision of the Clean Air Act (“CAA”), 42 U.S.C. § 7604(a), seeking an in- junction stopping that construction until the defen- dants obtain a valid permit as well as fines, costs and attorney’s fees. The defendants contend that the Court does not have jurisdiction to hear this suit and, alternatively, that the Sierra Club is barred by the Constitution and by statute from bringing this suit and that the defendants possess the required permit. The Court will briefly review the relevant statutory and regulatory provisions before addressing the de- fendants’ jurisdictional argument. If necessary, it will then proceed to analyze the substantive issues raised in the pending motions. 1. Statutory and Regulatory Framework Congress enacted the CAA, 42 U.S.C. § 7401 et seq.., in part to protect the public from the harmful effects of air pollution. To this end, the act includes provi- sions aimed specifically at preventing significant de- terioration of air quality. 42 U.S.C. §§ 7470-7492. Among those provisions is one that states: No major emitting facility on which construction is commenced after August 7, 1977, may be con- structed in any area to which this part applies unless — (1) a permit has been issued for such proposed facility in accordance with this part set- ting forth emission limitations for such facility which conform to the requirements of this part... . 35a 42 U.S.C. § 7475(a). The permit referred to in this provision is commonly called a “PSD permit.” A PSD permit contains an emission limitation which the permit issuer, the Illinois Environmental Protection Agency (“IEPA”) in Illinois, has determined reflects the best available pollution control technology (the “best available contro] technology” or “BACT”). See 42 U.S.C. §§ 7475(a)(4) & 7479(3). The United States Environmental Protection Agency (“EPA”), which Congress has charged with promulgating regulations to implement the CAA, has promulgated a regulation stating that a PSD permit becomes invalid: if construction is not commenced within 18 months after receipt of such approval, if con- struction is discontinued for a period of 18 months or more, or if construction is not com- pleted within a reasonable time. The Adminis- trator may extend the 18-month period upon a satisfactory showing that an _ extension is justified. 40 C.F.R. § 52.21(r)(2). The expiration is automatic and does not rely on any action by any agency to take effect. See 40 C.F.R. § 124.5(g)(2) (“PSD permits may be terminated only by rescission under § 52.21(w) or by automatic expiration under § 52.21(r).”); Grand Canyon Trust v. Tucson Elec. Power Co., 391 F.3d 979, 983-84 (9th Cir. 2004) (interpreting a nearly identical prior version of the regulation). Owners or operators seeking to construct major emitting facili- ties run the risk that if a PSD permit expires, they will then be subject to stricter BACT standards when applying for a new permit because of pollution control developments since their original permits were issued. 36a Congress defines commencement of construction of a major stationary source of air pollution (like the Plant) to mean: that the owner or operator has obtained all ne- cessary preconstruction approvals or permits re- quired by Federal, State, or local air pollution emissions and air quality laws or regulations and either has (i) begun, or caused to begin, a conti- nuous program of physical on-site construction of the facility or (ii) entered into binding agree- ments or contractual obligations, which cannot be canceled or modified without substantial loss to the owner or operator, to undertake a program of construction of the facility to be completed within a reasonable time. A2 U.S.C. § 7479(2)(A). The EPA similarly defines commencement of construction to mean: that the owner or operator has all necessary pre- construction approvals or permits and either has: (i) Begun, or caused to begin, a continuous program of actual on-site construction of the source, to be completed within a reasonable time; or (ii) Entered into binding agreements or con- tractual obligations, which cannot be can- celled or modified without substantial loss to the owner or operator, to undertake a pro- gram of actual construction of the source to be completed within a reasonable time. 40 C.F.R. § 52.21(b)(9). The EPA further defines “beginning actual con- struction” to mean: in general, initiation of physical on-site construc- tion activities on an emissions unit which are of 37a a permanent nature. Such activities include, but are not limited to, installation of building sup- ports and foundations, laying underground pipe- work and construction of permanent storage structures. With respect to a change in method of operations, this term refers to those on-site ac- tivities other than preparatory activities which mark the initiation of the change. 40 C.F.R. § 52.21(b)(11). II. Facts There is no dispute over many of the relevant facts in this case. The Court sets forth the undisputed facts in this section and will discuss the disputed facts as they become relevant to the resolution of the pending motions. All parties agree that in December 1999, Enviro- Power entered into a 99-year lease with Old Ben Coal Company (a subsidiary of Horizon Natural Re- sources) for the land on which it intends to build the Plant and that in December 2000, EnviroPower as- signed the lease to FCP. They also agree that in August 2000, FCP re- quested that the IEPA issue a PSD permit, that the Sierra Club did not participate in the review process for issuing the PSD permit, and that on July 3, 2001, the IEPA issued FCP a PSD permit. On July 9, 2003, FCP actually received the PSD permit, which con- tained the following provisions: 19a. This permit shall become invalid as follows, pursuant to 40 CFR 52.21(r)(2). This condition supersedes standard Condition 1. The Illinois EPA is administering these standards in Illinois on behalf of the United States EPA under a dele- gation agreement. 38a This Permit shall become invalid if construction of CFB {circulating fluidized bed] boilers is not commenced within 18 months after this permit becomes effective, if construction of these boilers is discontinued for a period of 18 months or more, or if construction of these boilers is not completed within a reasonable period of time. b. For purposes of the above provisions, the defi- nitions of “construction” and “commence” at 40 CFR 52.21(b)(8) and (9) shall apply, which re- quire that a source must enter into a binding agreement for on-site construction or begin ac- tual on-site construction. (Also see the definition of “begin actual construction,” 40 CFR 52.21(b)(11)). PSD Permit at 16-17. Before and after receiving the permit, the defen- dants worked toward completion of the Plant. They obtained an engineering report and a scoping study, began working on a boiler design and procurement of necessary resources and achieved other tasks essen- tial to construction of the Plant. In mid-2002, Khan- jee began to serve as the lead developer of the Piant project and shortly thereafter hired Acres Interna- tional, Inc. as a consulting engineer and began to evaluate engineering companies to serve as the con- tractor for the Plant project. All parties agree that sometime between November 21 and December 2, 2002, EnviroPower and Black & Veatch entered into an agreement entitled “Construc- tion Memorandum” which had as its subject “Con- struction Agreement for 534 MW Franklin County Power of Illinois (FPC) - EPC Contract” and had an 39a effective date of December 1, 2002. The Construction Memorandum begins: The following documents the agreements reached at meetings held in Cincinnati, Ohio on Novem- ber 21, 2002 and subsequent discussions con- cerning the EPC [engineering, procurement and construction} contract for a 534 MW CFB project to be executed on behalf of EnviroPower, L.L.C. under the conditions stipulated in the following. It also contains the following provisions, among many others: Black & Veatch has exclusively been designated as (“CONTRACTOR”), and been assigned to de- velop, in conjunction with EnviroPower, LLC as (“OWNER”), an EPC Consortium for the Project, along with the EPC Contract. The Parties agree that this CONSTRUCTION MEMORANDUM and the accompanying TERM SHEET form the agreement between the Parties. The Parties agree to be forthwith legally bound by the TERMINATION OF CONSTRUCTION MEMORANDUM, TERM SHEET AND/OR EPC CONTRACT WITHOUT DEFAULT section of the accompanying Term Sheet. The remaining sections of the Term Sheet are agreed by the Parties and intended to be incorporated into the EPC Contract. Contractor may ... enter into a contractual agreement with one or more parties . . . to design and furnish the circulating fluidized bed (CFB) boilers and the steam turbine generator or to perform portions of the construction work. .... 40a CONTRACTOR is continuing to develop a firm price and Draft EPC Contract for the FPC project, based on the provisions of Article 7 hereof. * *K * AGREEMENT TO WORK TOGETHER The OWNER wishes to awara a contract for the EPC of the FCP PROJECT (hereinafter referred to as “EPC CONTRACT”) to CONTRACTOR and to work exclusively with them as set forth herein with the good faith intent to complete the draft- ing and negotiation of said EPC Contract on the basis of the attached Term Sheet. The PARTIES agree to work with each other in good faith in accordance with the terms of this CONSTRUCTION MEMORANDUM to complete the drafting and negotiation of the EPC CON- TRACT, with the goal of agreeing and signing such EPC CONTRACT by September 1, 2005. EXCLUSIVITY The PARTIES agree to work together on an ex- clusive basis for the term of this CONSTRUC- TION MEMORANDUM which commences on December 1, 2002 and ends upon the earlier of the execution of the EPC Contract or November 30, 2005, or for such longer period as the PAR- TIES may jointly agree in writing in order to draft and negotiate the EPC CONTRACT for the FCP PROJECT. Therefore, the OWNER agrees that it will not directly or indirectly, alone or collectively, participate in discussions or negotia- tions with any other person(s) or entity(ies) other than CONTRACTOR concerning the EPC CON- 4la TRACT during the term of the CONSTRUCTION MEMORANDUM. In accordance with this CONSTRUCTION ME- MORANDUM, PARTIES shall further investi- gate various aspects of the FCP PROJECT in or- der to finalize the Contract Price and Project Schedule... . * KOK This CONSTRUCTION MEMORANDUM shall expire upon the occurrence of any one of the fol- lowing events: * KK (v) The date of signature of the EPC CONTRACT for the FCP PROJECT. The Term Sheet accompanying the Construction Memorandum included the following provisions: PURPOSE The proposed business terms and conditions contained herein, to- gether with the documents listed in Attachment 1 to the CONSTRUC- TION MEMORANDUM, form the basis of Owner and Contractor’s agreement for engineering, pro- curement and construction (“EPC”) of the Project. The Parties agree to use reasonable diligence to complete a mutually acceptable final written contract with respect to the scope of work and terms and conditions described in the following Term Sheet. 42a The Term Sheet then listed numerous obligations and other terms to be included in the EPC Contract, including a ceiling for the price to be paid to Black & Veatch, a time period after construction begins (39 months) in which construction must be substantially completed and a maximum termination penalty pay- able if the parties fail to agree on an EPC Contract ($72 million). The parties agree that on or around December 18, 2002, EnviroPower contracted with Alberici Con- structors, Inc. for on-site, boiler-house sub-foundation work. The contract did not specifically call for pour- ing concrete, but Alberici’s response to the “request for proposal” that preceded the contract included the tasks of excavating to competent rock, that is, a rock surface suitable to support the foundation, and pouring some concrete that would serve as part of the foundation. On January 3, 2003, four Alberici em- ployees began delivering equipment to the proposed Plant site. On January 8, 2003, Alberici employees began excavation. In late January or early February, Alberici unex- pectedly encountered obstructions in the form of un- derground reinforced concrete structures. Because some of these structures would interfere with pouring concrete for EnviroPower, Alberici began removing them from the site. At some point after Alberici sub- mitted its first invoice to EnviroPower on February 5, 2003, a dispute over payment arose. On February 14, 2003, Alberici stopped excavating and stopped re- moving the underground concrete structures. The Al- berici employees never completely removed the con- crete obstacles, dug deep enough to find competent rock, or poured any concrete. From February 2003 to June 2003, Alberici billed EnviroPower for work at 43a the site, although after February 14, no worker billed time for actual excavation work. The bills after Feb- ruary 14 included one day where workers showed up but performed no work; all other days included only the supervisor’s hours spent maintaining a protective barricade of the site. The vast majority of the amounts claimed after February 14 were for equip- ment rental. On March 31, 2003, Khanjee and EnviroPower en- tered into a Development Agreement and Purchase Agreement, and in August 2003, Khanjee issued an Offering Memorandum seeking financial support for the Plant construction. In 2004, the required financ- ing became available. In the meantime, FPC failed to make a payment of [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0428%3A1. Public record. Not legal advice.