WildEarth Guardians v. Lamar Utilities Board et al

Filing 36

OPINION AND ORDER DENYING MOTION TO DISMISS: Defendants' Motion to Dismiss 12 is DENIED. by Judge Marcia S. Krieger on 3/29/12. Text Only Entry(msksec, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 11-cv-00742-MSK-MJW
WILDEARTH GUARDIANS,
Plaintiff,
v.
LAMAR UTILITIES BOARD d/b/a LAMAR LIGHT AND POWER; and
ARKANSAS RIVER POWER AUTHORITY,
Defendants.
______________________________________________________________________________
OPINION AND ORDER DENYING MOTION TO DISMISS
______________________________________________________________________________
THIS MATTER comes before the Court pursuant to the Defendants’ Motion to Dismiss
(# 12), the Plaintiff’s response (# 13, as supplemented # 27), the Defendants’ reply (# 28), and
the Plaintiff’s sur-reply (# 35).
FACTS
Despite the wealth of detail in both the Plaintiff’s Complaint (# 1) and the parties’ briefs
in this matter, the underlying facts may be concisely stated. The Defendants operate a coal-fired
power plant (“the Plant”) near Lamar, Colorado. The Plaintiff contends that since commencing
operations in 2009, the Plant has repeatedly violated limits set by its operating permit with
regard to various air pollutants. The Complaint asserts ten causes of action, all under the Clean
Air Act, 42 U.S.C. § 7601 et seq.. Claims 1-5 assert that the Defendants have violated permit
limitations for each of five specific pollutants, and claims 6-10 allege that the Defendants has
failed to maintain consistent monitoring of emissions levels for each of the five pollutants.
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The Plaintiff is not the only entity that has complained of violations at the Plant. In July
2010, the Colorado Department of Public Health and Environment (“CDPHE”), the state agency
that oversees the Plant, issued a Compliance Advisory Letter, warning of various violations of
permit conditions. The Defendants and CDPHE entered into discussions about the contentions
in the letter, and in September 2010, they entered into a Consent Order that made certain
findings of violations, included obligations on the Defendants to come into compliance with
permit conditions (as to both emissions and monitoring), and to pay certain monetary penalties.
The Defendants attempted to effectuate repairs and modifications that would bring the Plant into
compliance, but were unable to effectively do so, and the Plant continued to operate in violation
of permit conditions. In December 2010, the Defendants shut down the Plant.
While the Defendants undertook additional repairs and modifications to the plant,
CDPHE notified the Defendants of supplemental violations that had occurred since the July 2010
Compliance Advisory Letter. In April 2011, shortly after the Plaintiff commenced this suit, the
parties entered into a second Consent Order that again noted various violations. The Defendants
and CDPHE agreed that the Defendants would be precluded from resuming operations – “other
than for limited testing purposes” – until it could demonstrate that it would operate in
compliance with its permit conditions. Based on these facts, the Defendants filed the instant
Motion to Dismiss (# 12), arguing that action by the CDPHE essentially rendered the Plaintiff’s
claims moot, insofar as the Consent Orders would ensure that the Plant no longer operated in
violation of its permit.
At the Plaintiff’s request, briefing of the motion was delayed to permit the Plaintiff to
conduct some additional discovery. In the meantime, the Defendants made additional

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modifications to the Plant in an attempt to bring it into compliance. The Plant resumed
operations in June 2011, ostensibly for “testing” purposes, and continued to operate at varying
levels until November 2011. During that period of time, the Defendants were able to achieve
certain reductions in some pollutant levels, but remained unable to achieve full compliance with
the permit requirements. Thus, the Plant was again shut down in November 2011. It appears
from the parties’ statements that the Plant is not currently operating.
The question before the Court is whether the Plaintiff’s suit has been rendered moot or it
otherwise precluded from proceeding by virtue of the CDPHE’s involvement in attempting to
bring the Plant into compliance.
ANALYSIS
A. Standard of review
The Defendants’ motion essentially seeks dismissal of the Plaintiff’s suit on the grounds
that the case has been rendered moot or otherwise outside of the Court’s subject-matter
jurisdiction under Fed. R. Civ. P. 12(b)(1).
Rule 12(b)(1) motions generally take one of two forms: (i) a facial attack on the
sufficiency of the complaint's allegations as to subject matter jurisdiction; or (ii) a challenge to
the actual facts upon which subject matter jurisdiction is based. Ruiz v. McDonnell, 299 F.3d
1173, 1180 (10th Cir. 2002), citing Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir.1995).
Here, the Defendants’ motions challenge the accuracy of the Plaintiff’s allegations that the Clean
Air Act will continue to be violated by operation of the Plant.
Where a Rule 12(b)(1) motion challenges the underlying facts of the case, the Court may
not presume the truthfulness of the complaint's factual allegations; rather, the Court has wide

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discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve
disputed jurisdictional facts. Sizova v. National Institute of Standards and Technology, 282 F.3d
1320,1324 (10th Cir. 2002). But in this case, there are not any material factual disputes as to
what has occurred to date; the parties disagree simply as to what inferences the Court should
draw from those facts when attempting to ascertain whether violations will occur in the future.
Accordingly, the Court sees no need to conduct an evidentiary hearing or to look beyond the
record as established by the parties’ evidentiary submissions.
B. Mootness/preemption
The Plaintiff’s claims are brought as a “citizen suit” under the Clean Air Act. 42 U.S.C.
§ 7604(a)(1). That statute provides that a private party may bring a civil suit on its own behalf
against “any person . . . who is alleged to have violated (if there is evidence that the alleged
violation has been repeated) or to be in violation of an emission standard or limitation. . . .” In
such suits, the courts are authorized to “enforce such an emission standard or limitation . . . and
to apply any appropriate civil penalties” according to the factors set forth in 42 U.S.C. §
7413(e)(1). Id. The purpose of the citizen suit provision is to “aid enforcement of the Act while
motivating governmental agencies charged with the responsibility to bring enforcement and
abatement proceedings.” Metropolitan Washington Coalition for Clean Air v. District of
Colombia, 639 F.2d 802, 804 (D.C. Cir. 1981).
Simultaneously-proceeding citizen suits and state enforcement actions may come into
conflict, as they have here. In such circumstances, the Act contemplates a certain preemption in
favor of administrative agencies. 42 U.S.C. § 7604(b)(1)(B) provides that no citizen suit “may
be commenced if the Administrator or State has commenced and is diligently prosecuting a civil

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action in a court of the United States or a State to require compliance.” However, courts
interpreting this provision have uniformly held that “a civil action in court” means what it says –
an action in a court – and preemption does not arise where a state agency is undertaking purely
administrative enforcement efforts. Texans United for a Safe Economy Education Fund v.
Crown Central Petrol. Corp., 207 F.3d 789, 794-95 (5th Cir. 2000) and cases cited therein.
Thus, CDPHE’s administrative efforts to achieve the Defendants’ compliance with the Act does
not preempt the Plaintiff’s suit here.
The Court then turns to the Defendants’ argument that the administrative enforcement
action has mooted the Plaintiff’s claims. The crux of the Defendants’ argument is that because
of the Consent Orders, the Defendants will be unable to operate the Plant in violation of permit
conditions in the future, and thus, no further violations will occur.
The Supreme Court addressed the mootness issue in a similar context in Friends of the
Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 189 (2000). There, during the
pendency of a citizen suit under the Clean Water Act,1 the defendant achieved substantial
compliance with its discharge permit. It later shut down the facility and put it up for sale. As a
result, the Court of Appeals dismissed the claims against the defendant as moot. On review, the
Supreme Court reversed, explaining that “in determining whether a case has been mooted by a
defendant’s voluntary conduct, [mootness results] if subsequent events made it absolutely clear
that the allegedly wrongful behavior could not reasonably be expected to recur.” Id. The party
asserting mootness bears “the heavy burden of persuading the court that the challenged conduct

1

Because the Clean Air Act and Clean Water Act are similar in their mechanism of
operation, courts routinely turn to cases decided under one when interpreting the other. See e.g.
Roosevelt Campobello Intern. Park Commn. v. U.S. E.P.A., 711 F.2d 431, 437 (1st Cir. 1983).
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cannot reasonably be expected to start up again.” Id. (Noting that “the effect of both Laidlaw’s
compliance and the facility closure on the prospect of future violations is a disputed factual
matter,” the Court remanded the action for further consideration of whether this strict standard
was met. Id. at 193-94.)
The Defendants argue that Laidlaw is not controlling because that case involved analysis
of whether “voluntary conduct” by a defendant moots an action, and here that shutdown of the
Plant pending additional repairs and modifications is involuntary, warranting application of a
different mootness standard. There is some authority for the proposition that, where compliance
is obtained involuntarily – e.g. through an enforcement action – the standard for avoiding
dismissal based on mootness requires the plaintiff to show that “there is a realistic prospect that
the violations alleged in its complaint will continue notwithstanding the consent decree.”
Environmental Conservation Organization v. City of Dallas, 529 F.3d 519, 528 (5th Cir. 2009).
No authority from the 10th Circuit appears to have addressed any distinction between “voluntary”
and “involuntary” conduct in this type of situation.
This Court is left with substantial doubt as to the wisdom or utility of attempting to
differentiate between “voluntary” and “involuntary” compliance in cases such as these. Using
Laidlaw as an example, compliance was described by the Supreme Court as “voluntary,” but the
filing of the citizen suit was preceded by a lawsuit2 against Laidlaw initiated by the state agency
charged with enforcing the Act. That lawsuit was resolved by a settlement agreement, one that
presumably could have been enforced against Laidlaw by the agency upon future violations. Id.

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Admittedly, the lawsuit was a plainly collusive one that the courts ultimately determined
was not “diligently prosecuted” and was induced solely in an attempt to preempt the threatened
citizen suit. 528 U.S. at 176-77.
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at 176-77. Thus, one could very easily describe Laidlaw’s subsequent compliance as having
been compelled, involuntarily, by the state enforcement action.3 In the common situation
presented here, a defendant allegedly is in violation of permit requirements when a regulatory
legal proceeding – whether administrative or in court – is commenced, but the defendant reforms
its behavior afterwards, characterizing the defendant’s actions as “voluntary” seems inapt, since
they were in response to enforcement efforts. But characterizing the defendant’s actions as
“involuntary” also seems inappropriate because it fails to recognize the defendant’s choice to
reform. The distinction between “voluntary” compliance and “involuntary” compliance becomes
even murkier when the defendant and regulator enter into a mutually agreed “consent decree”
that embodies a “voluntary” choice (by the polluter) with the potential of “involuntary”
enforcement (by the state). Thus, the distinction between “voluntary” and “involuntary”
compliance is difficult to draw. In addition, the primary significance of the distinction is the
assignment of the burden of persuasion on a single issue - whether the violations are likely to
continue.
Fortunately, in the context of this case, it is not necessary to resolve the fine distinctions
between voluntary or involuntary compliance, or to assign the burden of persuasion. The
Defendants initially sought dismissal of this action on mootness grounds on the strength of the
September 2010 Consent Order, but, as the ensuing events of June - November 2011 make clear,
that Consent Order was ineffective in ensuring that the Plant would not exceed permit

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Notably, the Supreme Court description of the compliance in Laidlaw as “voluntary”
was not the result of any particular discussion of the voluntary/involuntary question. Indeed,
there is no indication that the Supreme Court believed or intended that the adjective it chose to
describe Laidlaw’s repentance was intended to have any particular significance.
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limitations. Presumably, the Defendants now contend that the April 2011 Consent Order also
ensures the Defendants’ future compliance with permit conditions, but they offer no meaningful
explanation as to why, when the September 2010 Consent Order was ineffective, the April 2011
Order will suffice. Indeed, pursuant to the April 2011 Order, the Defendants can engage in the
very same “testing” that was conducted from June - November 2011 that caused violations of
permit conditions. Thus, the Court can see nothing in the Consent Orders, individually or in
concert, that gives any assurance that the Plant will not operate (for “testing” or otherwise) in
violation of permit conditions in the future. Moreover, the Court notes nothing in the record that
indicates that the system(s) responsible for prior permit violations has been corrected such that
the Defendants can say with some assurance that the Plant can resume operations in accordance
with the permit’s restrictions.4
Accordingly, the Court finds that, upon this record, if the Plant is reactivated, without
evidence of appropriate corrections/modifications, it is likely to operate in violation of the permit
conditions in the same way that it did from June - November 2011. Thus, there is a “realistic
prospect” that violations will continue. Even if the burden is on the Plaintiff to demonstrate that
the enforcement proceedings have not rendered the case moot, they have done so.

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Indeed, it would appear to the Court that the Defendants’ motion may be premature.
Unless and until the Defendants can state with confidence that the Plant has been repaired such
that its operation will achieve compliance, this Court is left with only the Defendants’
speculation that unidentified fixes in the future will allow them to comply with their obligations
under the Consent Orders. Upon a record that showed that the Plant had indeed been repaired,
completed testing, and resumed operations for a meaningful period of time with no or merely de
minimis permit violations, a claim of mootness might very well lie. See e.g. Black Warrior
Riverkeeper, Inc. v. Cherokee Mining, LLC, 637 F.Supp.2d 983, 986 (N.D.Al. 2009) (mootness
found where, since defendant entered into consent decree and resumed operations, only one
“relatively innocuous” violation occurred).
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CONCLUSION
For the foregoing reasons, the Defendants’ Motion to Dismiss (# 12) is DENIED.
Dated this 29th day of March, 2012
BY THE COURT:

Marcia S. Krieger
United States District Judge

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