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

Supreme Court brief2008

Ask Donna

What actually matters in this document.

Text

FILED

WO (4) JUN 8 - 2009

OFFICE OF THE CLERK

No. 08-1304 | SUPREME COURT. U.S

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,

wis

SIERRA CLUB,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

REPLY BRIEF OF PETITIONER

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

June 8, 2009 * Counsel of Record

WILSON- EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D. Cc 20002

TABLE OF CONTENTS

Page

TABLE OF AUTTHORIPIBG ...00sccccsesccscoorsscserseneess il

IE acini t nina ticcn ten ii ieminnsitmnbnncsinenien 1

R.“ASONS FOR GRANTING THE PETITION... 2

I. THE DECISION BELOW CONFLICTS

WITH DECISIONS OF THIS COURT......... 2

Il. THE COURT OF APPEALS’ STANDING

RULING POSES AN ISSUE OF FUNDA-

MENTAL IMPORTANCE ...................2....000- 8

CPR PIE Sete scnininleiactagtivcadeaieleoinandpanolaniicegens 1]

(1)

‘i

TABLE OF AUTHORITIES

CASES Page

DaimlerChrysler Corp. v. Cuno, 547 U.S.

Neen iicinianemtnnscesceves 2

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

ES REE CER 4,6,7

Raines v. Byrd, 521 U.S. 811 (1997)............. 9

Summers v. Earth Island Inst., 129 S. Ct.

Nene as cancndcnconecsece 6

United States v. $557,933.89, More or Less,

in U.S. Funds, 287 F.3d 66 (2nd Cir.

Teen os cnnapbonecsenscnncccces 5

OTHER AUTHORITIES

Statement by the President on the Budget

(Mar. 17, 2009), available at http://www.

whitehouse.gov/the_press_office/

Statement-by-the-President-on-the-

ETS OO 10

Nat'l Energy Policy Dev. Group, National

Energy Policy (May 2001), available at

http://www.pppl.gov/common_pics/

national_energy_policy/national_energy_

SE Re 8,9

INTRODUCTION!

Petitioners demonstrated that the decision below

conflicts with this Court’s constitutional standing

decisions requiring a plaintiff to show actual injury

that is traceable to the defendant’s conduct and

redressable by the requested relief. Respondent’s

opposition fails to show otherwise. Respondent also

fails to refute petitioners’ showing that this case

raises a recurring and important question of federal

law because the court of appeals’ dilution of this

Court’s standing principles in the context of Clean

Air Act (“CAA”) citizen suits threatens the entire

electric utility industry by turning over to private

parties the function of enforcing the environmental

laws.

At the end of the day, the court of appeals’ failure to

hold respondent to the specific showings and burden

of proof that this Court has set forth in its standing

decisions ignores the legitimate agenda that Congress

has prescribed for citizen suits, which is to support,

but not supplant, the authority of federal and state

environmental agencies. Here, petitioners have been

prevented from constructing a state-of-the-art clean

1 Petitioners’ counsel learned after the petition was filed that

EnviroPower, LLC had been tentatively administratively

dissolved by the Kentucky Secretary of State on November 1,

2008, and that Franklin County Power of ILlinois, LLC, f/k/a

EnviroPower of Illinois, LLC had similarly been involuntarily

dissolved by the-I[llinois Secretary of State on February 13, 2009.

These actions are minor administrative matters arising from

oversights in light of personnel changes. Even prior to the filing

of respondent's brief, the companies had begun the process of

addressing these matters. As of this filing, the necessary timely

steps have been taken to rectify the problem, which should be

corrected in a matter of days. The validity of the corporate

entities is not, and has never genuinely been, in question.

coal facility, even though the state and federal

agencies have taken no action to invalidate the

properly-issued permit. If the decision below is allow-

ed to stand, other power plant builders will inevitably

suffer the same fate at the hands of similar suits and

meaningful public control over enforcement of the

environmental laws will be lost.

REASONS FOR GRANTING THE PETITION

I. THE DECISION BELOW CONFLICTS WITH

DECISIONS OF THIS COURT.

Petitioners demonstrated (Pet. at 12-24) that the

decision below merits review because it conflicts with

this Court’s decisions 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

marks omitted). Respondent’s attempt to reconcile

the court of appeals’ decision with those holdings is

unavailing.

Respondent argues that there is no conflict between

the decision below and this Court’s decisions because

the court of appeals cited those decisions in its

rulings. See, e.g., Opp. at 10. To be sure, as petition-

ers acknowledged, see Pet. at 14, the Seventh Circuit

paid lip service to this Court’s standing decisions.

Federal courts, however, must do more than merely

parrot constitutional principles that this Court has

established. They must adhere to them. The

Seventh Circuit failed to do so here, in three respects.

1. Petitioners demonstrated that the Seventh

Circuit’s decision conflicts with this Court’s holding

that plaintiffs cannot satisfy the “injury in fact”

requirement of this Court’s standing framework by

pointing to “subjective apprehensions” that do not

demonstrate a “realistic threat” of the alleged future

injury. Pet. at 15-18 (internal quotation marks

omitted) (citing Friends of the Earth, Inc. v. Laidlaw

Envi Servs. (TOC), Inc., 528 U.S. 167, 184 (2000)).

Petitioners showed that Barbara McKasson’s feared

injuries to her aesthetic and recreational interests

are rooted in mere “subjective apprehensions” that

are not realistic because they stem from emission

limitations that the federal and state environmental

agencies deemed sufficient to protect air quality

under the CAA. Id. at 16-17.

Respondent does not dispute that the injuries it

asserts to establish standing are alleged injuries to

McKasson’s aesthetic and recreational interests that

stem from the emission limitations in the 2001

permit — and not from any “illegal” discharges by

petitioners or non-compliance with environmental

standards, as in Laidlaw and the other cases that

respondent cites. Opp. at 10-11; see also id. at 11-12

(emphasizing that the power plant is a “source of

pollution” that will have a “negative effect” on the

environment and noting that McKasson’s “specific

concerns’ derive from the “proposed plant’s

pollutants”). Instead, respondent argues (id. at 10-

11) that harm to aesthetic and recreational interests

can serve as “injury in fact” in some environmental

cases — a point that petitioners do not dispute, see

Pet. at 15 — and that petitioners’ argument “ignores

the fact that PSD permits do not remain valid

indefinitely” because pollution control technology and

environmental conditions can change. Opp. at 13.

Petitioners, however, do not ignore this fact. To the

contrary, petitioners noted (Pet. at 6 n.2) that they

were required by the CAA to apply for renewal of

their permit in 2006 with updated BACT and air

modeling analyses, and did so in a timely manner.2

To the extent that respondent is suggesting that

the alleged injuries to McKasson’s aesthetic and

recreational interests derive from a possible incre-

mental difference in the emission limitations in the

2001 permit and a hypothetical new permit,

respondent fails to refute petitioners’ showing that it

has never established either how the IEPA would set

the emission limitations in a new permit or that any

incremental tightening of the emission limitations

would be perceptible to McKasson, much less elimin-

ate her aesthetic and recreational concerns. See Pet.

at 21-22. Respondent has the burden of proof to

establish injury in fact and all of the other elements

of standing, see Lujan v. Defenders of Wildlife, 504

U.S. 555, 560-61 (1992). Here, respondent has failed

to meet this burden and has proffered nothing more

than McKasson’s “subjective apprehensions” that she

would suffer cognizable injury as a result of the

emission limitations in the 2001 permit.

As a result, the instant citizen suit is nothing more

than an impermissible collateral attack on the 2001

2 Respondent does not dispute that petitioners represented to

the courts below that the proposed plant was designed “to

produce emissions below permitted levels.” See Pet. at 16 n.6

(quoting Pet. App. lla). Petitioners represented to IEPA and to

the court of appeals at oral argument (and continue to maintain)

that the renewal PSD permit emission standards would equal or

surpass (i.e., be lower than) the limits on every regulated

emission, compared to any CFB power plant permitted in the

United States, thus making this power plant the cleanest, state-

of-the-art CFB coal-fired, baseload power plant in the nation.

3 Respondent does not dispute that McKasson “did not learn

about this case until after the Sierra Club filed suit.” Opp. at

12.

permit decision. Pet. at 17-18. Respondent does not

dispute that other federal courts have held that CAA

citizen suits cannot be used to bring collateral attacks

against the substance of state-issued permits, see id.

at 17, but asserts that here “there is no existing

permit to attack.” Opp. at 14. This is incorrect.

IEPA has never revoked the 2001 permit. To the

extent that respondent is relying on the lower courts’

determination that the permit has expired, this

reasoning is circular. Petitioners are making the

threshold argument that the lower courts had no

jurisdiction to decide any issue raised by respondent’s

suit and, therefore, no jurisdiction to decide that

issue in the first place. See United States v.

$557,933.89, More or Less, in U.S. Funds, 287 F.3d

66, 78 (2nd Cir. 2002) (“Standing is a question that

determines whether the claimant may properly

invoke the jurisdiction of the federal courts to

determine the merits of the underlying dispute, and

it therefore logically precedes, not follows, that

determination.”).4

2. Petitiondrs next demonstrated that the court of

appeals misapplied this Court’s standing decisions in

holding that respondent satisfied the causation

4 There is no merit to respondent’s contention (Opp. at 12 n.5)

that this Court wotld have to remand if it held that McKasson

lacks standing because the lower courts did not address the

possible standing of another Sierra Club member, Verena Owen.

Respondent does not refute petitioners’ showing that Ms.

Owen’s claim of injury in fact was far weaker than Ms.

McKasson’s claim because Ms. Owen merely asserted that she

lived approximately/ 350 miles away from the proposed plant

and was concerned; about the allegedly diffuse effects of the

plant’s emissions on air quality. See Pet. at 10 n.4. Accordingly,

if this Court were to hold that McKasson lacks standing, then it

surely would conclude that Ms. Owen lacks standing and there

would be no need for a remand. |

requirement. Pet. at 18-19. Petitioners showed that

there was a disconnect in the courts of appeals’

causation analysis because it found that the alleged

injury to McKasson’s aesthetic and recreational

interests was traceable to IEPA’s issuance of the PSD

permit in the first place with the specified emission

limitations, which is not the conduct that respondent

has challenged here. See id. at 15 (noting that

respondent has not challenged any aspect of IEPA’s

actions in approving the 2001 permit).

Respondent fails to address this point and,

therefore, fails to refute petitioners’ showing that the

court of appeals’ analysis is inconsistent with this

Court’s requirement that a plaintiff demonstrate “a -

causal connection between the injury and the conduct

complained of.” Lujan, 504 U.S. at 560 (emphasis

added).

3. Finally, petitioners demonstrated that the

court of appeals ignored this Court’s standing

decisions by improperly relying on a chain of

speculative inferences to conclude that the injunction

respondent seeks would redress McKasson’s alleged

injuries. Pet. at 19-24; see Summers v. Earth Island

Inst., 129 S. Ct. 1142, 1150 (2009) (rejecting theory of

Article III mjury that required multiple assump-

tions). Specifically, petitioners demonstrated that the

court of appeals’ finding of redressability improperly

rested on several speculative inferences, including

that a new permit would have more stringent

emission standards and that these standards would

alleviate McKasson’s alleged injuries. Pet. at 20-22.

Respondent attempts to sidestep this issue by

arguing that “little additional analysis is necessary”

and repeating the Seventh Circuit's unsupported

conclusion that technological improvements “guaran-

tee that a new permit would impose more stringent

pollution emission standards.” Opp. at 15. Self-

serving conclusory assertions, however, fail to rebut

petitioners’ specific showings that the court of

appeals ignored that (1) the determination of

emission limitations under the governing BACT

standard is a highly individualized, case-by-case

inquiry; (2) this Court’s decisions do not permit

federal courts to speculate that state policymakers

will make a particular decision in the future to

establish standing; and (3) this Court’s decision in

Summers requires federal courts to base standing

determinations on individualized proof rather than

general trends or statistical probabilities. See Pet. at

20-21. Respondent simply fails to address or defend

the court of appeals’ clear departure from this Court’s

decisions.

Respondent lkewise fails to respond to petitioners’

showing (id. at 21-22) that the court of appeals’

finding of redressability was based on the additional

speculative inferences that (1) any incremental

reduction in emission levels from a new permit would

be perceptible to McKasson; and (2) any such

reduction would be of sufficient magnitude to

eliminate or ‘reduce McKasson’s aesthetic and

recreational concerns. Both inferences are matters of

pure conjecture. As a result, the Seventh Circuit’s

finding of redressability here simply cannot be

reconciled with this Court’s holding in Lujan that it is

the plaintiffs burden to establish that it is “likely, as

opposed to merely speculative, that the injury will be

redressed by a favorable decision,” 504 U.S. at 561

(internal quotation marks omitted; emphases added),

and its holding in Summers that standing cannot be

based on a chain of speculation.

Respondent also argues that the district court's

injunction provides its members with temporary

redress. Opp. at 16. This argument merely high-

lights respondent’s interest in achieving delay and

the short-sighted nature of its litigation strategy.

The generation of electricity by this power plant

would drive from the marketplace at least one highly

polluting, more than 40 year-old coal-fired power

plant that was grandfathered in by the CAA. IEPA

has the expertise to evaluate the compensating

environmental protection arising from this replace-

ment. Neither Sierra Club nor the federal courts are

so equipped. Therefore, by delaying or preventing

petitioners’ environmentally-sound plant from being

built, respondent may well be creating a situation

whereby the citizens of Illinois, including respon-

dent’s members, will be forced to get their power —

either now or later — from sources that are less

environmentally sound, and at higher prices.5

II. THE COURT OF APPEALS’ STANDING

RULING POSES AN ISSUE OF FUNDA-

MENTAL IMPORTANCE.

Petitioners also demonstrated (Pet. at 24-27) that

the court of appeals’ dilution of this Court’s standing

principles in the context of CAA citizen suits presents

a recurring and important question of federal law

because it threatens to chill power plant builders

from pursuing projects that are critical to serving our

nation’s increasing energy needs. The decision

5 Respondent’s assertion (Opp. at 2) that petitioners “no

longer press their objection to the district court’s conclusion that

their permit has expired” is incorrect. Petitioners’ position is

that the permit has not expired and that the district court’s

conclusion to the contrary is invalid because it had no Article III

jurisdiction to decide that issue. IEPA has not yet made a final

determination on the expiration issue.

6 See Nat'l Energy Policy Dev. Group, National Energy Policy,

1-5 (May 2001), available at http://www.pppl.gov/common_pics/

below also contributes to the growing trend of private

groups performing an enforcement and even prosecu-

torial role with respect to environmental permits — at

the expense of publicly accountable government

officials.

Respondent does not deny either of these conse-

quences. Instead, respondent asserts that petitioners

are merely arguing “for repeal of the Clean Air Act’s

citizen-suit provision.” Opp. at 16. This argument is

wide of the mark. Petitioners have no quarrel with

the availability of citizen suits or the remedies that

the CAA provides.

Petitioners’ argument is that this case presents an

important question of federal standing law because

the decision below eviscerates constitutional prin-

ciples that this Court has established to ensure that

federal courts — which are courts of limited juris-

diction — entertain suits only when the plaintiffs

demonstrate actual, non-speculative injury that is

redressable by the relief sought. These standing

principles apply to all suits, including CAA citizen

suits. See Raines v. Byrd, 521 U.S. 811, 820 (1997)

(refusing to relax Article III standing principles “for

the sake of convenience and efficiency”). Here,

however, the Seventh Circuit abandoned this Court’s

standing principles and allowed a CAA citizen suit to

go forward in circumstances where the plaintiff

organization failed to show that one of its members

would suffer a cognizable injury under the existing

permit or that a new permit would redress the

alleged injury — thereby facilitating suits that will

national_energy_policy/national_energy_policy.pdf (noting that

“[a] pressing long-term electricity challenge is to build enough

new generation and transmission capacity to meet projected

growth in demand”); see also id. at 1-15 (“Illinois consumers are

reeling from high heating and cooling costs.”).

chill the construction of much-needed '= and

environmentally-sound power facilities.? The court of

appeals’ departure from Article III standing

principles in the CAA citizen-suit context therefore

presents an important question of federal law that

only this Court — and not Congress — can address.

Finally, respondent misses the point in asserting

(Opp. at 17-18) that this is not an instance in which

private enforcement of the environmental laws has

supplanted public enforcement because petitioners

can file a new permit. Petitioners have been enjoined

from building under the existing permit, even though

the responsible public agency has never revoked the

permit or ruled that it has expired. Respondent

suggests (id. at 18 n.7) that nothing “in the record”

supports petitioners’ “speculation” that the IEPA has

not ruled because it is “defer{ring]” to this litigation,

but petitioners submit that the record speaks for

itself. Nothing respondent says negates the plain fact

that IEPA commenced a review of the site

construction and the construction contract, pursuant

to sections 113(c) and 114 of the CAA, so that IEPA

could make its own final determination. For four

years, faced with the Sierra Club lawsuit, IEPA has

demonstrably been chilled from completing its

statutorily-prescribed mission of making a final

determination on the validity of the permit. The

precedent that would be set by allowing citizen-suit

plaintiffs, with the aid of the federal courts, to

interrupt the PSD construction permit process and

usurp the authority of a constitutionally-appointed

7 See Statement by the President on the Budget (Mar. 17,

2009), available at http://www.whitehouse gov/the_press_office/

Statement-by-the-President-on-the-Budget (noting the national

priority to invest in “clean energy,” including “clean coal”

technology).

agency is not only dangerous and in violation of

public policy and statute, but it is fundamentally

unconstitutional.

CONCLUSION

For the foregoing reasons, and for those presented

in the petition, the petition for a writ of certiorari

should be granted.

Respectfully submitted,