Opposition Brief — Franklin County County Power Power of of Illinois, LLC v. Sierra Club Club (No. 08-1304)

AG a = %, Supreme Court, U.S.

* ee FILED

ws i

eS MAY 29 2009

OFFICE OF THE CLERK

No. 08-1304

IN THE

Supreme Court of the Anited States

FRANKLIN COUNTY POWER OF ILLINOIS, LLC, ET AL.,

Petitioners,

v

SIERRA CLUB,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

RESPONDENT'S BRIEF IN OPPOSITION

LESTER A. PINES* GREGORY A. BECK

KIRA E. LOEHR BRIAN WOLFMAN

CULLEN WESTON PINES & PUBLIC CITIZEN

BACH LLP LITIGATION GROUP

122 W. Washington Ave. 1600 20th St. NW

Suite 900 Washington, DC 20009

Madison, WI 53703 (202) 588-1000

(608) 251-0101

Counsel for Respondent

May 2009 *Counsel of Record

a .

.s

QUESTION PRESENTED

Whether the Sierra Club submitted sufficient evi-

dence to show that one of its members, Barbara McKas-

son, would be injured by petitioners’ construction, with-

out a valid Clean Air Act permit, of a large, coal-fired

power plant three miles from a park that McKasson

regularly visits; and, if so, whether McKasson’s injury is

traceable to petitioners’ conduct and could be redressed

by an injunction prohibiting construction of the plant un-

til petitioners obtain a valid permit.

-

RULE 29.6 STATEMENT'

Respondent Sierra Club has no parent companies,

subsidiaries, or affiliates that have issued shares to the

public.

' Petitioners’ Rule 29.6 Statement erroneously states that peti-

tioner EnviroPower, LLC is a Kentucky limited liability company

and that Franklin County Power of Illinois, LLC, f/k/a EnviroPower

of Illinois, LLC (Franklin County Power) is an Illinois limited liabil-

ity company. The Kentucky Secretary of State administratively dis-

solved EnviroPower, LILC on November 1, 2008 (see Ky. Sec’y of

State, Online Business Database, http://apps.sos.ky.gov/business/

obdb (search for “E.nviroPower, LI.C”’)), and the Illinois Secretary

of State involuntarily dissolved Franklin County Power on February

13. 2009 (see Ill. See’y of State, Department of Business Services

Database, http://www.ilsos.gov/corporatelle/ (search for “Franklin

County Power’)).

-iii-

TABLE OF CONTENTS

QUESTION PRESENTED

RULE 29.6 STATEMENT

TABLE OF CONTENTS.................. jiinenclmegibatn caine ili

TABLE OF AUTHORITIES

INTRODUCTION

Ete NEES Siiicled nuded oumnimnnnceaantnean 2

REASONS FOR DENYING THE WRIT

| ¥ The Relevant Standard for Determining

Standing in This Case Is Well-Established

NEE SING a cena secsainininvcisnintnaneniasintdiovaninciinn 6

The Seventh Cirecuit’s Decision Was

|, RT AALS nee MEATY IS A ee ES 10

Petitioners’ Predictions About — the

Implications of the Decision Below Amount

to Nothing More Than Policy

Disagreements With the Clean Air Act. ............. 16

CONCLUSION

-iv-

TABLE OF AUTHORITIES

Cases

Ecological Rights Foundation v. Pacific

Lumber Co., 230 F.3d 1141 (9th Cir.

Families Concerned About Nerve Gas

Incineration v. U.S. Department of

the Army, 380 F. Supp. 2d 1233

See et Licrnichcesicalpiee deieecdacaitcuyasitsnenpeonbesxenenpnsi 14

Friends of the Earth v. Consolidated Rail

Corp., 168 F.2d 57 (20 Cir. 1985) .....cccccersersevesse 7,17

Friends of the Earth, Inc. v. Gaston

Copper Recycling Corp., 204 F.3d

149 (4th ClP. ZOD). ..cevseccacccses ideals tease occanstasieudea das 8, 11

Friends of the Earth, Inc. v. Laidlaw

Environmental Services, 528 U.S.

Be Cy sicinieed idiavad adebseinssdi ani nkcewanclisnenions 2, 7,10, 11

In re New York Power Authority, 1 E.A.D.

Pe Aes. RIED ocasindinmetnssncevvie censerateseeninsnctusinne 13, 15

In re West Suburban Recycling & Energy

Center, L.P., 8 E.A.D. 192 (E.A.B.

BE sikisseeceninutptneindeicndescp ats aad pitas cudsciabimvakaninehons 3, 15

LaFleur v. Whitman, 300 F.3d 256 (2d Cir.

res ee a See STEN Oe ee EE ee 15

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

NO EE sa tidisctisdunscakas sdgcivamiusemmdicensacspasianecabenrcas’ 9, 14

-V-

National Parks Conservation Association

v. Tennessee Valley Authority, 175

F. Supp. 2d 1071 (B.D. Tenn. 2001)................c000 14

New York Public Interest Research Group

v. Whitman, 321 F.3d 316 (2nd Cir.

I iediasas nin iniasonhiaiohaseabniehesdel calvioeshniciaasseuntlaitenaetuagpunns 11

Ogden Projects, Inc. v. New Morgan

Landfill Co., 911 F. Supp. 863 (E.D.

is IE vasievsisebvasdaainstalacenasan anita abel nnienianeeniiainuite 9

Proffitt v. Rohm & Haas, 850 F.2d 1007

I i iii te nae anaadebbaabinn 17

Steel Co. v. Citizens for a Better

Environment, 523 U.S. 83 (1998)... eee eee 14

Summers v. Earth Island Institute, 129 S.

ie ae ca lS a eae as ey

Texans United for a Safe Economy

Education Fund v. Crown Central

Petroleum Corp., 207 F.3d 789 (5th

ea ae a 11

Statutes

a Te WIE cckactvensvacincunatsuthaneunendpeisienaceerressabauinieeia 16

Re PT Oe Ee NOE vcisacn ech stunedcsansiensaddinnianiesinveenetinieeecueeeean 2

We A A ssincetnccsecivesensticecsassesvesstevigpionsengebadaael 4

rE BOE ces vss vevisiisssinsesinmnrreecnens ae ee

-vi-

Rules

A en ED vovevccccacoesesecdncdseccsdorsccecceseesesenessane 3,18

Be Wee Fy iasvcatscricsctccaccansssosesssesasnsccoannasscinede, 3

se to Sa OL 1,9

oh.

INTRODUCTION

Petitioners ask this Court to overturn a decision of

the Seventh Circuit prohibiting them from constructing

a large, coal-fired power plant under authority of a Clean

Air Act permit that expired in 2003. Although petitioners

do not dispute that the plant would be a major source of

air pollution and would be built only three miles from a

park frequented by at least one Sierra Club member,

Pet. App. 3a, 10a-lla, they nevertheless argue that the

Sierra Club lacks standing to challenge construction of

the plant.

Petitioners do not identify any split among the cir-

cuits or unsettled question of federal law that would war-

rant this Court’s review. Instead, they argue that ques-

tions of Article III standing are important enough to jus-

tify a grant of certiorari “even in the absence of a clear

conflict among the circuits.” Pet. 13 n.5. The relevant

standing analysis, however, is already well-established

by this Court’s case law (including its decision just this

Term in Summers v. Earth Island Institute, 129 S. Ct.

1142 (2009)), and the only question posed by the petition

is therefore the fact-bound question whether the Seventh

Circuit correctly applied the established precedent to the

particular evidence in this case. Certiorari is rarely ap-

propriate where, as here, “the asserted error consists

of... the misapplication of a properly stated rule of law.”

S. Ct. R. 10.

In any event, the Seventh Circuit reached the only

reasonable conclusion based on the undisputed facts. The

court relied on the affidavit of Sierra Club member Bar-

bara McKasson, who stated that she would reduce her

use of the Rend Lake area if a major coal-fired power

plant that did not comply with current emission limits

were built nearby. McKasson’s affidavit is indistinguish-

able from the affidavits this Court held sufficient to sup-

-2.

port standing in Friends of the Earth, Inc. v. Laidlaw

Environmental Services, 528 U.S. 167 (2000). Moreover,

uncontested evidence submitted by the Sierra Club es-

tablished that requiring petitioners to obtain a new per-

mit that complied with recent advances in pollution-

control technology would substantially reduce or elimi-

nate McKasson’s injury.

Although framed as an attack on the Sierra Club’s

standing, petitioners’ real complaint is with the Clean

Air Act’s citizen-suit provision, which they contend al-

lows “private groups with self-serving agendas” to “pre-

vent needed and beneficial energy plants from being

built.” Pet. 3, 25. Congress, however, chose to provide a

cause of action against “any person who proposes to con-

struct ... [a] major emitting facility without a permit.”

42 U.S.C. § 7604(a)(3). Because petitioners no longer

press their objection to the district court’s conclusion

that their permit has expired, the plant they propose to

construct would necessarily be “without a permit” under

the Clean Air Act. Petitioners’ policy concerns about the

impact of the statute on the power industry should be

directed to Congress, not to this Court.

STATEMENT

In 2000, Franklin County Power applied for a permit

to build a coal-fired power plant in Benton, Illinois. Pet.

App. 4a. Because the plant would be a “major emitting

facility” under the Clean Air Act, the company was re-

quired to obtain a permit from the Illinois Environ-

mental Protection Agency (IEPA) before it could begin

construction. Pet. App. 3a-4a. The required permit,

known as a “Prevention of Significant Deterioration” or

“PSD” permit, sets limits on emissions based on “best

available control technology” standards for air pollut-

ants. Pet. App. 3a; see 42 U.S.C. § 7475(a).

x:

The IEPA issued a PSD permit to Franklin County

Power on July 3, 2001. Pet. App. 4a. Once the permit was

issued, the Clean Air Act required the company to act

quickly to preserve its right to construct the plant. Un-

der the Act and its implementing regulations, PSD per-

mits automatically expire if a company does not “com-

mence” construction of a permitted plant within 18

months of the permit’s issuance, discontinues construc-

tion during any 18-month period, or does not complete

construction within a reasonable time. Pet. App. 3a; see

40 C.F.R. § 52.21(r)(2), 124.5(g)(2) These timeliness re-

quirements provide an “important assurance” that power

plants keep pace with updated emission limits and rap-

idly evolving pollution-control technology. See Jn re W.

Suburban Recycling & Energy Ctr. L.P., 8 E.A.D. 192

(E.A.B. 1999). Without them, a permit would lock in

place existing levels of emissions, allowing companies to

build plants long after the limits are considered unac-

ceptable and the control technology has become obsolete.

See id.

Franklin County Power failed to comply with the

law’s timeliness requirements in several ways:

First, the company did not commence construction of

the plant within 18 months of issuance of the permit. Be-

cause the IEPA issued the company’s permit on July 3,

2001, the last day for it to begin construction was Janu-

ary 3, 2003. Pet. App. 16a-17a. The company, however,

did no work on the site until, at the earliest, January 8&,

2003, five days after the permit had expired. Pet. App.

18a-19a."

° In the district court, the company argued that it was entitled to

various extensions that pushed its deadline past January 3, 2003.

Pet. App. 16a n.3. On appeal, however, the company abandoned this

argument. /d. Thus, the “operative” date in the Seventh Circuit was

January 3, 2008. /d.

ois

Second, after the company began work on the site in

January 2003, it did no more than dig a hole. Pet. App.

19a. Because “commencement” under the Clean Air Act

requires the start of “physical on-site construction” of

the emission source, the company would not have timely

commenced construction even if it had begun digging the

hole before the January 3, 2003, deadline. Pet. App. 18a-

19a; see 42 U.S.C. § 7479(2)(A).°

Third, just over a month after digging began, the

contractor ceased all work on the site because of a pay-

ment dispute. After the company also failed to pay its

rent, the company’s landlord filled in the hole the com-

pany had dug. Pet. App. 19a, 43a. Thus, even if the com-

pany had commenced construction before expiration of

the permit, that construction would not have been a

“continuous program of physical on-site construction,”

as required by the Clean Air Act, 42 U.S.C. § 7479(2)(A)

(emphasis added). See Pet. App. 19a.

Fourth, after work ceased in February 2003, the

company did not start digging another hole until more

than 18 months later, on September 29, 2004. Pet. App.

5a. Regardless of whether work had commenced in

January or February of 2003, the permit would have

therefore subsequently expired after 18 months of inac-

tivity. Pet. App. 20a.

* As an alternative to physical on-site construction, the Clean

Air Act considers an owner to have commenced construction if the

owner has “entered into binding agreements or contractual obliga-

tions, Which eannot 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). Both the district court and Seventh Circuit concluded

that petitioners had not entered into such a contract, Pet. App. 20a-

27a, and petitioners do not raise the issue in the petition,

o-

With a partially dug hole being the only progress

made on the site in almost four years, the IEPA on No-

vernber 19, 2004, made a “preliminary finding” that the

company’s PSD permit had expired. Pet. App. 5a, 44a.

Nevertheless, the company continued to maintain that its

permit was valid and that nothing prevented it from pro-

ceeding with construction of the plant. Pet. App. 10a. To

stop the company from going forward with construction

under an expired permit and outdated control-

technology standards, the Sierra Club filed suit under

the Clean Air Act’s citizen-suit provision. 42 U.S.C.

§ 7604(a)(3). That provision states that “any person” may

bring a civil action to prevent construction of a “new or

modified major emitting facility without a permit” or a

facility that is alleged to be “in violation of any condition

of such permit.” /d.

After discovery, the district court granted the Sierra

Club’s motion for summary judgment. The court first

rejected petitioners’ argument that the Sierra Club

lacked standing, holding that at least one Sierra Club

member, Barbara McKasson, was injured by petitioners’

proposal to construct the plant using outdated “best

available control technology” standards. Pet. App. 5la.

Turning to the merits, the court held that the company’s

permit automatically expired when it failed to commence

construction within 18 months of the permit’s issuance

and that, even if construction had commenced on time,

the permit would have subsequently lapsed after 18

months of inactivity. Pet. App. 56a. The district court

therefore granted an injunction prohibiting petitioners

from continuing to construct the proposed plant “until

they have obtained a valid PSD Permit.” Pet. App. 67a.

On appeal in the Seventh Circuit, petitioners again

argued that the Sierra Club lacked standing to pursue its

claims. Like the district court, the Seventh Circuit dis-

agreed, holding that McKasson’s interests were suffi-

-6-

cient to give the group standing. Pet. App. 7a-14a. The

Seventh Circuit also agreed with the district court’s de-

cision to enjoin construction of the proposed plant. The

court concluded that petitioners’ permit to build the

plant had expired and therefore that continued construc-

tion would be “without a permit” and in violation of the

Clean Air Act. Pet. App. 15a. Moreover, because peti-

tioners had not complied with the time limits on the face

of the permit, the court concluded that construction

would be “in violation of La] condition” of the permit. Jd.

In the petition, petitioners no longer challenge the

lower courts’ decision that their permit has expired. The

only question here is whether the Sierra Club has stand-

ing to challenge petitioners’ construction of the proposed

plant with an expired permit.

REASONS FOR DENYING THE WRIT

[. The Relevant Standard for Determining Stand-

ing in This Case Is Well-Established and Un-

disputed.

Although petitioners claim that the Seventh Circuit’s

decision that the Sierra Club had standing “plainly ig-

nored” established precedent, the standard they urge is

precisely the standard applied by the court. The undis-

puted test, as set forth by this Court in Laidlaw and ap-

plied by both the district court and Seventh Circuit be-

low, requires the Sierra Club to show that at least one of

its members “(1) ... has suffered an ‘injury in fact’ that

is (a) concrete and particularized and (b) actual or immi-

nent, not conjectural or hypothetical; (2) the injury is

fairly traceable to the challenged action of the defendant;

and (3) it is likely, as opposed to merely speculative, that

fm

the injury will be redressed by a favorable decision.”

Laidlaw, 528 U.S. at 180-81.4

In Laidlaw, plaintiff environmental groups chal-

lenged a water-treatment plant’s pollution emissions un-

der the Clean Water Act, which has a citizen-suit provi-

sion very similar to the provision at issue in this case. /d.

at 174-75, 177; see F’'riends of the Earth v. Consol. Rail

Corp., 768 F.2d 57, 63 (2d Cir. 1985) (noting that the citi-

zen-suit provision of the Clean Water Act “was explicitly

modeled on” and is a “clear parallel” of the Clean Air

Act’s provision). The defendant argued that the groups

lacked standing to challenge pollution emissions in the

absence of “demonstrated proof of harm to the environ-

ment.” Jd. at 181. This Court rejected that argument,

holding that “(t]he relevant showing for purposes of Ar-

ticle III standing . . . is not injury to the environment but

injury to the plaintiff.” 7d. Like the Sierra Club here, the

plaintiff environmental groups in Laidlaw showed this

type of injury with affidavits of members who used the

affected areas for sports and recreation and who stated

that they would be less likely to continue using those ar-

eas if the challenged pollution were to continue. Jd. at

181-83.

Earlier this Term, this Court in Summers, 129 S. Ct.

1142, reaffirmed the continuing applicability of Lardlaw.

* “An association has standing to bring suit on behalf of its

members when its members would otherwise have standing to sue in

their own right, the interests at stake are germane to the organiza-

tion’s purpose, and neither the claim asserted nor the relief re-

quested requires the participation of individual members in the law-

suit.” Laidlaw, 528 U.S. at 181. Petitioners do not argue that the

issues are not germane to Sierra Club’s purpose or that participa-

tion of individual Sierra Club members would be required. There-

fore, there is no dispute that Sierra Club has standing to challenge

construction of the plant as long as at least one of the organization's

members would have standing.

-8-

There, environmental organizations challenged a United

States Forest Service regulation that deprived them of

the opportunity to comment on a timber sale at a forest

site known as Burnt Ridge. /d. at 1147-48. In support of

standing, the organizations submitted the affidavit of

Ara Marderosian, a member who stated that he had re-

peatedly visited Burnt Ridge, that he had plans to do so

again, and that the challenged regulation harmed his in-

terests in viewing the area’s flora and fauna. /d. at 1149-

50. Before the case reached this Court, however, the par-

ties had settled their dispute over the Burnt Ridge tim-

ber sale. /d. This Court held that the settlement de-

prived the plaintiffs of standing because there was no

longer any identified “concrete application that threat-

ens imminent harm to Marderosian’s interests.” Jd. At

the same time, it reaffirmed the principle that a plaintiff

ean challenge environmental harm that “affects the rec-

reational or even the mere esthetic interests of the plain-

tiff.” Jd. Indeed, the Forest Service conceded that

Marderosian’s affidavit was enough to establish his

standing to challenge the Burnt Ridge timber sale. Jd. at

1149.

Petitioners identify no circuit split on the proper

standard to apply in cases like this one and no decision

that even arguably conflicts with Laidlaw or with the

decision below. Those federal courts of appeals that have

addressed the question have universally rejected any re-

quirement that plaintiffs show evidence of actual envi-

ronmental harm and have accepted as sufficient affida-

vits establishing that the challenged emissions will affect

the plaintiffs’ use and enjoyment of the environment.

See, e.g., Friends of the Earth, Inc. v. Gaston Copper Re-

cycling Corp., 204 F.3d 149, 163-64 (4th Cir. 2000) (en

bane) (“Courts are not at liberty to write their own rules

of evidence for environmental standing by crediting only

direct evidence of impairment. Such elevated evidentiary

_9-

hurdles are in no way mandated by Article III.”); see

also Ecological Rights Found. v. Pac. Lumber Co., 230

F.3d 1141, 1149 (9th Cir. 2000). The one district court de-

cision petitioners identify, which required plaintiffs to

produce “evidence regarding the magnitude of the di-

minished air quality,” predates Laidlaw and cannot be

reconciled with Laidlaw’s holding that no “demonstrated

proof of harm to the environment” is required. Ogden

Projects, Inc. v. New Morgan Landfill Co., 911 F. Supp.

863, 869-70 (E.D. Pa. 1996).

Because the proper standard, as set forth in Laidlaw

and Summers, is essentially undisputed, the only ques-

tions raised by the petition are the questions posed by

the particular facts of the case—namely, whether the Si-

erra Club has shown that one of its members, Barbara

McKasson, would be injured by petitioners’ construction

of a power plant in Benton, Illinois without a valid per-

mit, and whether that injury is both traceable to peti-

tioners’ conduct and redressable by the federal courts.

The answer to those questions depends, as the Seventh

Circuit recognized, on the “specific facts” of the case and

on the “manner and degree of evidence” presented. Pet.

App. 7a (quoting Lujan v. Defenders of Wildlife, 504

U.S. 555, 561 (1992)); see also Ecological Rights Found.,

230 F.3d at 1149 (holding that environmental standing

eases “are not to be evaluated in a one-size-fits-all,

mechanistic manner”). Although petitioners may dis-

agree with the conclusion reached by the Seventh Cir-

cuit, they have no choice but to acknowledge that the

case involves, at most, “misapplication of standing prin-

ciples established by this Court.” Pet. 24. Under this

Court’s Rule 10, a petition is “rarely granted” when the

asserted error consists of an alleged “misapplication” of

a settled rule of law. There are no exceptional circum-

stances here that justify making this case the rare excep-

tion.

-10-

Il. The Seventh Circuit’s Decision Was Correct.

Even if error correction were a valid basis for seek-

ing this Court’s review, certiorari would be inappropriate

here because the result reached by the Seventh Circuit

was not only reasonable, but required by this Court’s

standing jurisprudence.

1. The first prong of the standing analysis requires

the plaintiff to show an “injury in fact.” Laidlaw, 528

U.S. at 180-81. In concluding that McKasson would be

injured by construction of the plant, the Seventh Circuit

relied cn this Court’s decisions in Laidlaw and other

eases holding that “environmental plaintiffs adequately

allege injury in fact when they aver that they use the af-

fected area and are persons for whom the aesthetic and

recreational values of the area will be lessened by the

challenged activity.” Pet. App. 7a-8a (quoting Laidlaw,

528 U.S. at 183); see also Sierra Club v. Morton, 405 U.S.

727, 735 (1972). These are precisely the allegations in

McKasson’s affidavit. The affidavit states that McKasson

visits Rend Lake, a beautiful natural area less than three

miles from the proposed site of the power plant, to fish,

kayak, camp, and enjoy the natural beauty and clean en-

vironment. Pet. App. 8a. McKasson states that she has

visited Rend Lake with her family every other year since

1987 and plans to continue to do so indefinitely. Pet. App.

8a, 50a. She also states that she would stop visiting the

park if a major polluting power plant with an outdated

permit were constructed three miles away. /d.

McKasson’s affidavit is indistinguishable from affida-

vits held sufficient to support standing in Laidlaw. For

example, Lazdlaw held that the affidavit of Kenneth Lee

Curtis established his standing to challenge illegal river

discharges under the Clean Water Act. Laidlaw, 528

U.S. at 181-82. Curtis stated in his affidavit that he

“would like to fish, camp, swim, and pienic in and near

‘St.

the river between 3 and 15 miles downstream from the

facility, as he did when he was a teenager, but would not

do so because he was concerned that the water was pol-

luted by [the defendant’s] discharges.” /d. Similarly, as

already mentioned, Summers involved an affidavit by

Ara Marderosian that all parties agreed was sufficient to

support standing. See supra at 8. The federal courts of

appeals have relied on similar affidavits to find standing

in environmental cases. See, e.g., N.Y. Pub. Interest Re-

search Group v. Whitman, 321 F.3d 316 (2d Cir. 2003)

(allegations that members residing within a few miles of

defendants’ facility were concerned about pollutant

emission levels if the facility did not comply with the

Clean Air Act); Gaston Copper Recycling, 204 F.3d at

153 (allegations that members would make greater rec-

reational use of a waterway except for concern over the

defendant’s discharg2s): Texans United for a Safe Econ.

Educ. Fund v. Crorvn Cent. Petroleum Corp., 207 F.3d

789, 792 (5th Cir. 20CV) (“[B]reathing and smelling pol-

luted air is sufficient to demonstrate injury-in-fact and

thus confer standing under the [Clean Air Act}.”) (inter-

nal quotation omitted). Petitioners identify no decisions

that hold otherwise.

Nor have petitioners identified any evidence contra-

dicting the statements in McKasson’s affidavit about the

proposed plant’s pollutants and their likely effect on her

use and enjoyment of Rend Lake. Instead, petitioners

criticize McKasson’s affidavit on the ground that it fails

to “specify which pollutant would cause what harm.” Pet.

10. This claim is irrelevant in light of Laidlaw’s holding

that plaintiffs need not produce “demonstrated proof of

harm to the environment.” 528 U.S. at 181. It is also

false. Contrary to petitioners’ contention, McKasson’s

affidavit stated her specific concerns about the health

effects and reduced visibility caused hy mercury, sulfur

dioxide, and nitrogen oxides that would be emitted by

-12-

the plant. Pet. App. 10a-lla, 5la. Indeed, petitioners

have never disputed that the plant would be a source of

pollution in the local environment. Pet. App. 3a, 10a-11a.

It is hardly a stretch to conclude that a “major emitting

facility” like the large, coal-fired power plant petitioners

propose would have a negative effect on a natural area

less than three miles away.

The only evidence petitioners identify in regard to

McKasson’s affidavit is her statement, elicited in a depo-

sition, that she did not learn about this case until after

the Sierra Club filed suit. Pet. 7, n.3. That statement,

though true, is irrelevant. Petitioners do not explain why

McKasson’s knowledge of the lawsuit on the date of fil-

ing has anything to do with the question whether she

would be injured. Regardless, McKasson faced a threat

of injury on the date the lawsuit was filed that was

caused by petitioners’ conduct and was redressable by a

court. Moreover, McKasson’s affidavit establishes that

she is concerned about air pollution, both in general and

from the proposed plant, has been active in opposing

construction of other coal-fired power plants, and moved

away from Chicago for the purpose of escaping the city’s

smog. If petitioners’ intend to imply that MeKasson is

not seriously interested in the controversy, they are

wrong.”

2. Petitioners’ only argument for distinguishing Laid-

law is the unfounded contention that, unlike the plaintiffs

there, the Sierra Club has not alleged that any environ-

* Sierra Club also submitted the affidavit of another Sierra Club

member, Verena Owen, in support of its claim for standing. Neither

the district court nor the Seventh Circuit reached the question of

Owen's standing because both courts found that Sierra Club suffi-

ciently established that McKasson had standing to sue. Pet. App.

5la; Pet. App. 13a. If this Court were to hold that McKasson lacks

standing, it should remand for a determination of Owen’s standing.

-13-

mental law or standard has been violated. Petitioners

argue that, because the IEPA granted Franklin County

Power a PSD permit eight years ago, the Sierra Club’s

claims stem from “emission limitations that the federal

and state environmental agencies deemed sufficient to

protect air quality under the [Clean Air Act].” Pet. 16.

Without any citation to authority, petitioners conclude

that “[pJersonal fears of emissions that comply with fed-

eral clean air standards ... cannot be credited as a ‘real-

istic’ or ‘reasonable’ basis for standing.” /d.

Petitioners’ argument ignores the fact that PSD per-

mits do not remain valid indefinitely. See 40 C.F.R.

§ 52.21(r)(2). The Clean Air Act and its implementing

regulations state that if construction is not commenced

within 18 months of receiving a permit, is discontinued

for 18 months or more, or is not completed within a rea-

sonable time, the facility may not be constructed with the

emission standards in the permit. Jd. Once a PSD permit

has expired, an agency must make new determinations of

best available control technology standards based on the

current level of air pollution in the locality of the plant

and advances in the development of pollution-control

technology. See In re N.Y. Power Auth., 1 E.A.D. 825,

826 (E.A.B. 1983) (The Clean Air Act’s statutory time

limit “is one of the means of ensuring that the require-

ment for best available control technology . . . involves

reasonavcly current pollution controls.”).

Here, both the district court and the Seventh Circuit

agreed that the permit automatically expired when peti-

tioners did not “commence” construction within 18

months after the permit was granted or, at the latest,

when petitioners discontinued construction for more

than 18 months.® The petition does not challenge these

© Because both the distmet court and the Seventh Cireurt deter-

mined that the permit expired under the first two prongs, neither

“td.

aspects of the decisions below. If petitioners proceed

with constructing the plant, as they would do absent the

injunction, they would be constructing a plant without a

valid permit and therefore would have violated the Clean

Air Act. Petitioners are thus wrong to claim that their

expired permit gives them authority to build the pro-

posed plant.

Similarly, petitioners’ claim that the challenge is a

“collateral attack” on the IEPA’s permit decision fails for

the simple reason that there is no existing permit to at-

tack. The two district court decisions on which petition-

ers rely held that a plant should not be penalized for

compliance with a “facially valid state permit.” Nat’

Parks Conservation Ass’n v. Tenn. Valley Auth., 175 F.

Supp. 2d 1071, 1078 (E.D. Tenn. 2001); see Families

Concerned About Nerve Gas Incineration v. U.S. Dep't

of Army, 380 F. Supp. 2d 1238, 1257 (N.D. Ala. 2005).

Even assuming these decisions were correct, they would

not be applicable here. Petitioners’ permit in this case is

not facially valid—it is facially invalid. A challenge to

construction of a plant without a valid permit is exactly

the sort of case the Clean Air Act’s citizen-suit provision

contemplates. See 42 U.S.C. § 7604(a)(3) (providing a

cause of action against “any person who proposes to con-

struct ...{a] major emitting facility without a permit”).

In any case, the applicability of the Clean Air Act in

these circumstances Is a question of the statute’s scope

and therefore goes, at most, to the merits rather than to

standing. See Steel Co. v. Citizens for a Better Env't, 523

U.S. 83, 92 (1998). Whether an agency has approved con-

struction of a plant is irrelevant to the question whether

the construction would injure the plaintiff. See Layan,

504 U.S. at 573 n.7 (“{U]nder our case law, one living ad-

court reached the question whether construction could be completed

within a reasonable time.

-15-

jacent to the site for proposed construction of a federally

licensed dam has standing to challenge the licensing

agency's failure to prepare an environmental impact

statement... .”’); LaFleur v. Whitman, 300 F.3d 256, 270

(2d Cir. 2002) (finding standing to challenge pollution

that complied with national air-quality standards).

3. As petitioners note, the second two prongs of the

standing inquiry—traceability and redressability—are

closely related to the issue of injury. Pet. 18. Here, little

additional analysis is necessary. McKasson’s injuries are

“fairly traceable” to construction of the plant because

constructing a plant that does not comply with current

emission standards would cause the envircnmental and

recreational harms set forth in McKasson’s affidavit.

Similarly, McKasson’s injuries are redressable by a fa-

vorable decision because requiring the plant to abide by

current emission standards would reduce or eliminate

her exposure to the source of her injury.

Petitioners challenge redressability on the ground

that, even if they are required to obtain a new permit,

there is no guarantee that the permit would impose more

stringent poliution limitations than were imposed by

their expired 2001 permit. The reason that the Clean Air

Act imposes strict time limits for construction of permit-

ted plants, however, is to assure that new plants keep up

with evolving pollution-control technology. See W. Sub-

urban Recycling & Hnergy Ctr, 8 E.A.D. 192; NY.

Power Auth., 1 %.A.D. 825. As the Seventh Circuit rec-

ognized, technology improvements over the past nine

years guarantee that a new permit would impose more

stringent pollution emission standards on petitioners.

Pet. App. 12a-18a. Indeed, the Sierra Club submitted

evidence showing that newer permits granted by the

IEPA imposed significantly more stringent limits than

petitioners’ 2001 permit. Pet. App. 13a. Petitioners did

not contest this evidence in the district court and, aside

-16-

from vaguely protesting that “each coal-fired power

plant has unique characteristics,” Pet. 21 n.7, have no

answer to it here.

Regardless, there is no question that the district

court’s injunction will, at a minimum, give McKasson

significant, if only temporary, relief. Because petitioners’

PSD permit has expired, they have no right to build the

proposed plant unless and until a new permit is obtained.

The district court’s order thus allows McKasson to enjoy

the benefits of the park, at least for the time being, with-

out any pollution from the power plant. Moreover, peti-

tioners are not guaranteed a new permit, and, if they fail

to obtain one, McKasson’s temporary relief, sufficient in

itself to establish standing, would be made permanent.

Thus, although petitioners argue that the Sierra Club’s

arguments are “speculative,” it is actually petitioners

who are speculating. The possibility that petitioners may

apply for a new permit and that the IEPA may grant one

sometime in the future is not sufficient to defeat the Si-

erra Club’s standing to challenge construction now.

III. Petitioners’ Predictions About the Implica-

tions of the Decision Below Amount to Noth-

ing More Than Policy Disagreements With the

Clean Air Act.

Petitioners devote a significant portion of their brief

to policy arguments, contending that allowing this case

to proceed would “clog[}] the courts with questionable

citizen suits,” that would “prevent needed and beneficial

energy plants from being built.” Pet. 3. Even if this were

true, it would constitute, at most, an argument for repeal

of the Clean Air Act’s citizen-suit provision. Congress

intended the Clean Air Act to allow for “economic

growth ...in a manner consistent with the preservation

of existing clean air resources.” 42 U.S.C. § 7470(3). The

citizen-suit provision is part of Congress’s attempt to

-17-

balance the sometimes competing goals of growth and

clean air, designed to “both goad the responsible agen-

cies to more vigorous enforcement of the anti-pollution

standards and, if the agencies remained inert, to provide

an alternative enforcement mechanism.” Proffitt v.

Rohm & Haas, 850 F.2d 1007, 1011 (8d Cir. 1988) (inter-

nal quotation omitted). In this process, “Congress made

clear that citizen groups are not to be treated as nui-

sances or troublemakers but rather as welcomed partici-

pants in the vindication of environmental interests.”

Consol. Rail Corp., 768 at 68 (internal quotation omit-

ted). Petitioners are free to ask Congress to rewrite the

statute, but the plain language of the law as currently

written grants the Sierra Club the right to challenge

construction of a power plant that lacks a valid permit.

In any event, petitioners’ catastrophic predictions

about the impact of the Seventh Circuit’s decision are

unsupported by the record and seriously overblown. The

decision beiow holds only that petitioners’ permit has

expired and requires only that petitioners refrain from

constructing their proposed plant “until they have ob-

tained a valid PSD Permit.” Pet. App. 67a. Petitioners

are therefore required to do no more than to live up to

their legal obligations under the Clean Air Act. Petition-

ers’ argument that the Seventh Circuit’s decision will

slow down the production of “needed and beneficial en-

ergy plants” is particularly disingenuous given that it is

petitioners’ long delay in constructing the plant that

caused its permit to lapse in the first. place.

For the same reason, petitioners’ argument that the

decision interferes with the judgment of the agencies

charged with regulating power-plant emissions gets

things backward. Petitioners are free to seek a new per-

mit from the IEPA at any time, in which case the agency

will decide whether and under what conditions the plant

should be built. Far from allowing an end-run around the

-18-

agency, the injunction thus ensures that the IEPA will

have an opportunity to exercise its discretion before the

proposed plant is constructed.’

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

GREGORY A. BECK

BRIAN WOLFMAN

PUBLIC CITIZEN LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-2111

LESTER A. PINES*

KIRA EF. LOEHR

CULLEN WESTON PINES & BACH, LLP

122 W. Washington Ave.

Suite 900

Madison, WI 53703

(608) 251-0101

Counsel for Respondent

May 2009 *Counsel of Record

" Petitioners’ speculation that the [EPA has deferred issuing a

final ruling on the validity of the permit in deference to this litiga-

tion is unsupported by anything in the record and has no basis in

law.