WildEarth Guardians v. Colorado Springs Utilities Board
ORDER Denying Defendants' 33 Motion for Summary Judgment and Denying Plaintiff's 34 Motion for Partial Summary Judgment. By Judge Christine M. Arguello on 01/08/2018. (athom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 17-cv-00357-CMA-MLC
COLORADO SPRINGS UTILITIES BOARD,
COLORADO SPRINGS UTILITIES, and
CITY OF COLORADO SPRINGS,
ORDER DENYING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
This matter is before the Court on the parties’ competing motions for summary
1. Defendants Colorado Springs Utilities Board, Colorado Springs Utilities, and
the City of Colorado Springs’ (collectively, “Defendants”) Motion for Summary
Judgment (Doc. # 33), and
2. Plaintiff WildEarth Guardians’ Motion for Partial Summary Judgment (Doc.
For the reasons described below, the Court denies Defendants’ Motion for Summary
Judgment (Doc. # 33) and denies Plaintiff’s Motion for Partial Summary Judgment (Doc.
Plaintiff WildEarth Guardians is a nonprofit, membership organization that seeks
to reduce air pollution and its adverse effects in the western United States. (Doc. # 15
at 3–4.) Plaintiff has more than 200,000 members from across the country,
approximately 483 of whom live in Colorado Springs, Colorado. (Id. at 3.)
Defendant City of Colorado Springs is a home-rule municipality incorporated in
Colorado. (Doc. # 33 at 4.) Defendant Colorado Springs Utilities is an enterprise of the
City and operates the Martin Drake Power Plant pursuant to the city charter and the
state constitution. (Id.) Defendant Colorado Springs Utilities Board is composed of the
city council’s members and is the Board of Directors of Colorado Springs Utilities. (Id.)
The Martin Drake Power Plant (the “Plant”) is located at 7000 Conejos Street,
Colorado Springs. (Id. at 5.) Relevant here, the Plant has three coal-fired, electricity
generator units: Units 5, 6, and 7, built in 1962, 1968, and 1974, respectively. (Id.) Unit
5 was permanently shut down in December 2016. (Id.) Units 6 and 7 remain in
CONTROLLING LAW, REGULATIONS, AND PERMIT REQUIREMENTS
1. The Clean Air Act
The Clean Air Act (the “Act” or the “CAA”) is a comprehensive federal scheme
that regulates air emissions from stationary and mobile sources, with the aim of
“protect[ing] and enhanc[ing] the quality of the Nation’s air resources.” 42 U.S.C.
§ 7401(b)(1). The Act directs the Environmental Protection Agency (the “EPA”) to
establish National Ambient Air Quality Standards, which define levels of air quality
necessary to protect the public health. 42 U.S.C. § 7409; 40 C.F.R. § 50.2(b). States
are required to develop State Implementation Plans (“SIPs”), applicable to certain
industrial sources of air pollutants, in order to achieve these standards. 42 U.S.C.
§ 7410(a)(1). SIPs are subject to the EPA’s approval. 42 U.S.C. § 7410(a)(3)(B).
The Act provides for at least two enforcement mechanisms: first, the EPA may
order compliance, issue an administrative penalty, or bring a civil action against the
violator. 42 U.S.C. § 7413(a)(1); 40 C.F.R. § 52.23. Second, and most important to this
matter, the Act contains a citizen suit provision. 42 U.S.C. § 7604. The citizen suit
provision empowers “any person” to “commence a civil action on his 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.” 42 U.S.C. § 7604(a)(1). The district court in which a citizen suit is filed has
jurisdiction to provide injunctive relief and “to apply any appropriate civil penalties.” 42
U.S.C. § 7604(a). Such civil penalties may be up to $37,500 per day for each violation
committed between January 12, 2009, and November 2, 2015, and up to $93,750 per
day for each violation committed after November 2, 2015. 40 C.F.R. § 19.4.
Two titles of the Clean Air Act are relevant to the instant suit. First, Title IV,
known as the Acid Rain Program, is intended to reduce the adverse effects of acid
deposition by mandating reductions in emissions of sulfur dioxide and nitrogen oxides.
42 U.S.C. § 7651(b). Certain industrial sources, including power plants, are required to
install and operate a continuous emission monitoring system (“CEMS”) at each source
of such emissions to “provide on a continuous basis a permanent record of emissions
and flow.” 42 U.S.C. § 7651k(a); 42 U.S.C. § 7651a(7); see generally 40 C.F.R. § 72.
When required CEMS data is not available, “and the owner or operator cannot provide
information, satisfactory to the [EPA], on emissions during that period,” the EPA “shall
deem the unit to be operating in an uncontrolled manner during the entire period for
which the data was not available.” 42 U.S.C. § 7651k(d).
Second, Title V of the Clean Air Act requires certain industrial sources to obtain
and operate in compliance with an operating permit. 42 U.S.C. § 7661b(a). An
operating permit must include “enforceable emission limitations and standards, a
schedule of compliance, [and] a requirement that [a] permittee submit to the permitting
authority . . . the results of any required monitoring.” 42 U.S.C. § 7661c(a); see
generally 40 C.F.R. § 70.
One such form of required monitoring is opacity 1 monitoring. 40 C.F.R.
§ 75.10(a)(4). Power plants and other certain industrial sources must maintain a
continuous opacity monitoring system (“COMS”) with an automated data acquisition
system “for measuring and recording the opacity of emissions (in percent opacity)
discharged to the atmosphere” every six minutes. Id.; 40 C.F.R. § 75.10(d)(2). A
source’s COMS must be in operation and measuring opacity “at all times that the
effective unit combusts any fuel[,] except . . . during periods of calibration, quality
assurance, or preventative maintenance . . . , periods of repair, periods of backups of
data . . . , or recertification,” and at all times “following combustion when fans are still
operating.” 40 C.F.R. § 75.10(d) (emphasis added).
Opacity is “the degree to which emissions reduce the transmission of light and obscure the
view of an object in the background.” 40 C.F.R. § 60.2.
Every state is charged with administering its own Title V operating permit
program, subject to the requirements of Title V and to the approval of the EPA. 40
C.F.R. § 70.1(a). The Colorado Department of Public Health and Environment’s
(“CDPHE”) operating permit program was approved by the EPA on October 16, 2000.
40 C.F.R. § 70, App’x A; see Colo. Rev. Stat. § 25-7-114.3. Pursuant to Colorado
regulations, a stationary industrial source may not “allow or cause the emission into the
atmosphere of any air pollutant that in excess of 20% opacity” in any six-minute period,
except when the source is undergoing “process modification, or adjustment or
occasional cleaning of control equipment.” 5 C.C.R. §§ 1001-3, II.A.1–4.
2. The Plant’s Operating Permit
CDPHE issued the Plant its initial Title V operating permit on November 1, 2002,
and a revised Title V operating permit on April 13, 2004. See (Doc. # 33-1 at 3–81.)
The Plant’s operating permit incorporates COMS requirements set forth in the federal
regulations, see 40 C.F.R. § 75, and in Colorado’s regulations, see 5 C.C.R. §§ 1001-3,
II.A.1–4. (Doc. # 33-1 at 31, 33–34.)
Plaintiff filed this action against Defendants on February 9, 2017. (Doc. # 1.) In
its Amended Complaint, Plaintiff alleges a single claim for relief, alleging that the Plant
violated continuous opacity monitoring requirements, in breach of Titles IV and V of the
Act, federal regulations, Colorado’s operating permit plan and regulations, and the
Plant’s Title IV operating permit. (Doc. # 15 at 15.) Specifically, Plaintiff asserts that
there was at least 18,930 minutes of “COMS downtime” between April 11, 2011, and
December 13, 2015, during which time Defendants failed to monitor opacity of
emissions at the Plant. (Id.) Plaintiff further alleges that these unmonitored minutes
“[did] not fall within one of the limited downtime exceptions” identified at 40 C.F.R.
§ 75.10(d) and were thus “unexcused.” (Id.) Because opacity is monitored and
reported in six-minute intervals, Plaintiff contends that the 18,930 minutes of
unmonitored “downtime” represents 3,155 violations of the Clean Air Act and its
implementing regulations. (Id.) Plaintiff seeks declaratory relief; an order to
Defendants, mandating compliance with COMS requirements; civil penalties against
Defendants; and an award of reasonable costs and attorneys’ fees. (Id. at 16.)
Defendants timely answered on May 23, 2017. (Doc. # 19.)
Defendants moved for summary judgment on September 26, 2017, and argue
that Plaintiff lacks standing and that its claim therefore must be dismissed for lack of
jurisdiction. (Doc. # 33.) Plaintiff filed a response brief on October 17, 2017 (Doc.
# 36), to which Defendants replied on October 31, 2017 (Doc. # 38).
Plaintiff moved for partial summary judgment on September 26, 2017, seeking
summary judgment that Defendants violated the Clean Air Act on 91 occasions (totaling
1,848 six-minute increments) because none of the statutory exceptions to COMS
requirements applied to those 91 instances of “downtime”. 2 (Doc. # 34.) Defendants
responded on October 17, 2017. (Doc. # 37.) Plaintiff replied on October 31, 2017.
(Doc. # 39.)
In its Amended Complaint, Plaintiff alleges 147 incidents of unexcused downtime, totaling to
3,155 violations of the Act. (Doc. # 15 at 15.) In its motion for partial summary judgment,
Plaintiff does not seek summary judgment on the remaining 56 incidents. (Doc. # 34 at 1 n.1.)
SUMMARY JUDGMENT STANDARD
Summary judgment is warranted when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it is essential to the proper
disposition of the claim under the relevant substantive law. Wright v. Abbott Labs., Inc.,
259 F.3d 1226, 1231–32 (10th Cir. 2001). A dispute is “genuine” if the evidence is such
that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v.
Muskogee, Okl., 119 F.3d 837, 839 (10th Cir. 1997). When reviewing a motion for
summary judgment, a court must view the evidence in the light most favorable to the
non-moving party. Id. However, conclusory statements based merely on conjecture,
speculation, or subjective belief do not constitute competent summary judgment
evidence. Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).
The moving party bears the initial burden of demonstrating the absence of a
genuine dispute of material fact and entitlement to judgment as a matter of law. Id. In
attempting to meet this standard, a movant who does not bear the ultimate burden of
persuasion at trial does not need to disprove the other party’s claim; rather, the movant
need simply point out to the Court a lack of evidence for the other party on an essential
element of that party’s claim. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th
Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met its initial burden, the burden then shifts to the
nonmoving party to “set forth specific facts showing that there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The nonmoving party
may not simply rest upon its pleadings to satisfy its burden. Id. Rather, the nonmoving
party must “set forth specific facts that would be admissible in evidence in the event of
trial from which a rational trier of fact could find for the nonmovant.” Adler, 144 F.3d at
671. Stated differently, the party must provide “significantly probative evidence” that
would support a verdict in her favor. Jaramillo v. Adams Cty. Sch. Dist. 14, 680 F.3d
1267, 1269 (10th Cir. 2012). “To accomplish this, the facts must be identified by
reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.”
The Court necessarily begins by addressing Defendants’ Motion for Summary
Judgment because Defendants contend that the Court lacks jurisdiction over the instant
case. Because it concludes that Plaintiff has standing to bring this action against
Defendants, the Court then addresses Plaintiff’s Motion for Partial Summary Judgment.
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Defendants argue that Plaintiff does not have standing to bring this action and,
thus, this Court must dismiss the case for lack of jurisdiction. (Doc. # 33 at 4.)
1. Principles of Standing
The jurisdiction of federal courts is limited to “Cases” and “Controversies.” U.S.
Const. art. III, § 2, cl. 1; Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102 (1998).
This has always been taken to mean cases and controversies “traditionally amenable
to, and resolved by, the judicial process.” Steel Co., 523 U.S at 102 (citing Muskrat v.
United States, 219 U.S. 346, 356–57 (1911)). The doctrine of standing “serves to
identify those disputes which are appropriately resolved through the judicial process.”
Whitmore v. Ark., 495 U.S. 149, 155 (1990). Relevant here, the doctrine ensures that a
plaintiff has a sufficient personal stake in the dispute to ensure the existence of a live
case or controversy. See Allen v. Wright, 468 U.S. 737, 750–51 (1984).
The “irreducible constitutional minimum of standing” contains three elements.
Lujan v. Def. of Wildlife, 504 U.S. 555, 560 (1992). A plaintiff must show that: (1) he or
she has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual
or imminent, not conjectural or hypothetical; (2) there is causation—a “fairly traceable”
connection between the plaintiff’s injury and the challenged action of the defendant; and
(3) it is “likely, as opposed to merely speculative,” that the plaintiff’s injury “will be
redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.,
Inc., 528 U.S. 167, 180–81 (2000) (quoting Def. of Wildlife, 504 U.S. at 560–61). A
membership 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 organization's purpose, and neither the claim asserted nor the relief
requested requires the participation of individual members in the lawsuit.” Id. at 181
(citing Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)).
The plaintiff invoking federal court jurisdiction “always has the burden of proving
standing . . . no matter how or when the issue is raised.” Colo. Manufactured Hous.
Ass’n v. Bd. of Cty. Comm’rs, 946 F. Supp. 1539, 1543 (D. Colo. 1996). Thus, where
standing is raised in a motion for summary judgment, the usual burden of proof for
summary judgment does not apply. See Glover River Org. v. United States Dep’t of
Interior, 675 F.2d 251, 254 n.3 (10th Cir. 1982). Instead, the plaintiff bears the burden
of demonstrating that standing exists. Id. (noting that where a case proceeds to
summary judgment, the plaintiff “must do more than plead standing; he must prove it”);
Colo. Manufactured Hous. Ass’n, 946 F. Supp. at 1543 (“the burden is on the plaintiff,
on a motion for summary judgment, to demonstrate that standing exists”). The plaintiff
“must present specific facts.” Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995).
The specific facts alleged in the complaint, as well as additional information uncovered
by discovery, should be accepted as true and construed in favor of the plaintiff.
Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 109 n.22 (1979).
In the matter before the Court, Plaintiff asserts that it has associational standing
because its members “live and recreate in the vicinity of [the Plant] and are harmed by
the failure of [Defendants] to comply with [their] legally required air pollution monitoring
requirements.” (Doc. # 15 at 4.) To substantiate its standing, Plaintiff disclosed to
Defendants declarations of four of its members who live and recreate near the Plant:
Nicole Rosa (Doc. # 33-1 at 129–32); Jacqueline Ostrom (id. at 137–41); Leslie Weise
(id. at 151–55); and Mark Robinson (id. at 156–59). (Doc. # 33 at 6–7; Doc. # 36 at 3.)
The Court accepts specific factual allegations in these declarations as true and
construes them in favor of Plaintiff in reviewing Defendants’ Motion for Summary
Judgment. See Gladstone Realtors, 441 U.S. at 109 n.22.
Defendants argue that Plaintiff fails to prove each of the three elements of
standing. (Doc. # 33 at 9.) The Court addresses each element in turn.
The injury-in-fact element of standing is satisfied differently depending on
whether the plaintiff seeks prospective or retrospective relief. Tandy v. City of Wichita,
380 F.3d 1277, 1283 (10th Cir. 2004) (citing City of Los Angeles v. Lyons, 461 U.S. 95,
101–02 (1983)). A plaintiff seeking prospective relief must be “suffering a continuous
injury or be under a real and immediate threat of being injured in the future.” Id. The
threatened injury must be “certainly impending;” a claimed injury contingent on
speculation or conjecture is insufficient. Id. at 1283–84 (quoting Laidlaw, 528 U.S. at
190). A plaintiff seeking retrospective relief, on the other hand, satisfies the injury-infact requirement if his or her alleged past injury was concrete and particularized. Id. at
1284 (citing Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211 (1995)).
In the instant matter, Plaintiff seeks both prospective and retrospective relief.
See (Doc. # 15 at 16). It asserts three “concrete and imminent injuries” to its members
who “live, work, and recreate in [the Plant’s] immediate vicinity”: “(1) justifiable fear of
health risks; (2) diminishment of aesthetic interests; and (3) diminished recreational
enjoyment.” (Doc. # 36 at 4–5.) Defendants contend that Plaintiff’s members’
“concerns” are merely “vague speculation . . . insufficient to create standing.” (Doc.
# 33 at 10.) The Court is not persuaded by Defendants’ argument because it neglects
the underlying purpose of the Clean Air Act.
The purpose of the CAA is to protect and improve air quality “so as to promote
the public health and welfare and the productivity capacity of [the Nation’s] population.”
42 U.S.C. § 7401(b)(1). The Act authorizes the EPA to require certain industrial
sources to monitor, record, and report emissions and other data points, 42 U.S.C.
§ 7414(a)(1), and the EPA has required opacity monitoring as one such measurement,
40 C.F.R. §§ 75.1(a), 75.13. In short, as the Court explained in Wildearth Guardians v.
Public Service Co. of Colorado, “opacity monitoring has been authorized to
quantitatively measure the air quality.” No. 09-cv-01862-ZLW-MEH, 2010 WL 1568574,
*2 (D. Colo. April 15, 2010). Violation of opacity monitoring requirements is illegal and
is punishable by law. Id.
The Act authorizes a private citizen to initiate a civil action against “any person
. . . who is alleged to have violated . . . or to be in violation of . . . an emission standard
or limitation under this chapter.” 42 U.S.C. § 7604(a)(1). The Act defines the term
“emission standard or limitation under this chapter” as including “any other standard,
limitation, or schedule established under any permit issued pursuant to [Title V of
the CAA] or under any applicable [SIP] . . . , [and] any permit term or condition.” 42
U.S.C. § 7604(f)(4) (emphasis added). Because opacity monitoring is required by
federal regulation, see 40 C.F.R. § 75.10(a)(4), and by Colorado’s SIP and regulations,
see Colo. Rev. Stat. § 25-7-114.3, 5 C.C.R. §§ 1001-3, II.A.1–4, and is integrated in
Title V operating permits issued by CDPHE, the Act certainly authorizes a private citizen
to initiate a civil action where a defendant has allegedly violated continuous opacity
monitoring requirements. See Sierra Club v. Ga. Power Co., 443 F.3d 1346, 1349 (11th
Cir. 2006) (“citizens may sue to enforce the terms of a . . . Title V permit”). “[V]iolation
of opacity monitoring is necessarily an injury in fact attributable to the monitoring
violator.” Pub. Serv. Co. of Colo., 2010 WL 1568574 at *2.
In this action, Plaintiff has satisfactorily demonstrated injury-in-fact to its
members. “[E]nvironmental plaintiffs adequately allege injury in fact when they aver that
they use the affected area and are persons ‘for whom the aesthetic and recreational
values of the areas will be lessened’” by the complained-of conduct. Laidlaw, 528 U.S.
at 183 (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)). All four of Plaintiff’s
members live and recreate in close proximity to the Plant, see (Doc. # 33-1 at 129–59),
and consequently are within the area affected by Defendants’ alleged misconduct. The
members also aver that they believe that when Defendants fail to continuously monitor
opacity, “levels of harmful air pollutants are not known, potentially resulting in excess
emissions,” and that they are aware of the harmful health effects of the Plant’s
emissions. (Doc. # 36 at 7); see (Doc. # 33-1 at 129–59). Two of the declarants, Ms.
Rosa and Ms. Ostrom, assert that they regularly curtail outdoor activities near their
homes and the Plant for fear of excess emissions. (Doc. # 33-1 at 129, 138–39.)
These members’ declarations sufficiently illustrate injury-in-fact. See Laidlaw, 528 U.S.
at 184 (holding that the affiants’ conditional statements—that they would use a river
area if the defendant was not polluting it—were not “‘some day’ intentions . . .
insufficient to show injury”); Pub. Serv. Co. of Colo., 2010 WL 1568574 at *2 (where the
plaintiff organization alleged the defendant violated opacity monitoring requirements,
holding that the plaintiff’s members’ concerns about recreational and aesthetic interests
were sufficient injury-in-fact) 3.
The Court rejects Defendants’ attempt to distinguish Public Service Co. of Colorado, 2010 WL
1568574 at *2, from the instant action. See (Doc. # 38 at 4.) In both Public Service Co. and the
Sierra Club v. Simkins Industries, Inc., 847 F.2d 1109 (4th Cir. 1988), is
persuasive. 4 Therein, the plaintiff alleged that the defendant violated the Clean Water
Act 5 by failing to report quarterly on its discharge of pollutants into navigable waters. Id.
at 1111. The plaintiff submitted an affidavit of one of its members who “regularly use[d]
and enjoy[ed]” the waterway at issue. Id. at 1112. The defendant challenged the
plaintiff’s standing, and the plaintiff responded that its members had been injured by
alleged reporting violations because the members were unable to know the full extent of
pollution into the waterway. Id. The Fourth Circuit agreed with the plaintiff and held that
it did have standing. Id. at 1113. The Fourth Circuit explained:
[the plaintiff’s member’s] affidavit adequately establishes injury and the threat of
future injury, stemming from [the defendant’s] failure to report concerning harmful
effluents for which its permit contained maximum discharge levels . . . . As a
result of these violations, information on any harmful level of pollutants in the
area of [the defendant’s] plant during this time period is forever lost to
environmental planners and policymakers and those who might undertake to
remedy the effects of any pollution. Moreover, [the defendant’s] failure to report
on levels of harmful effluents subject to maximum discharge limitations threatens
[the member’s] prospective interest in protecting the environmental integrity of
the [waterway] and curtailing any ongoing unlawful discharges into its waters.
The actual injury stemming from reporting and sampling violations, coupled with
the threatened injury stemming from failure to report on maximum levels of
harmful effluents, establishes injury.
instant matter, the plaintiffs alleged only that the defendant violated opacity monitoring
requirements. Neither plaintiff alleged that the defendant had exceeded emissions limits.
Defendants’ attempt to distinguish Simkins, 847 F.2d at 1112–13, fails to move the Court. See
(Doc. # 38 at 5.) Defendant’s statement that “that there was direct evidence of illegal pollution
going into the river and [the Fourth Circuit] based its standing decision on that evidence,” see
id., mischaracterizes the nature of the plaintiff’s claims in Simkins. See Simkins, 847 F.2d at
The Clean Air Act and the Clean Water Act use similar means, including citizen suit provisions.
The Supreme Court and other courts have relied on cases decided under one statute when
interpreting the other. See, e.g., Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc.,
484 U.S. 49, 62 (1987).
Id. For the same reasons that the Fourth Circuit found standing in Simkins, the Court
concludes that in the instant matter, the declarations of Plaintiff’’s members establish
injury-in-fact. Plaintiff has presented specific facts to demonstrate an injury-in-fact and
has satisfied the first element of standing.
The causation element of standing requires a plaintiff to demonstrate that his or
her alleged injury “fairly can be traced to the challenged action of the defendant, and not
injury that results from the independent action of some third party not before the court.”
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41–42 (1976). The causation, or
traceability, requirement “exists to eliminate those cases in which a third party and not a
party before the court causes the injury. Am. Canoe Ass’n, Inc. v. Louisa Water &
Sewer Comm’n, 389 F.3d 536, 532 (6th Cir. 2004) (citing Def. of Wildlife, 504 U.S. at
560). In the context of an environmental pollution case, a plaintiff “‘must merely show
that a defendant discharges a pollutant that causes or contributes to the kinds of injuries
alleged’ in the specific geographic area of concern.” Friends of the Earth, Inc. v. Gaston
Copper Recycling Corp., 204 F.3d 149, 161 (4th Cir. 2000) (internal citation omitted).
In the instant suit, Plaintiff’s alleged injury is fairly traceable to Defendants’
action. Plaintiff alleges that its members’ injuries to their aesthetic and recreation
interests were undoubtedly caused by Defendant’s alleged failure to continuously
monitor opacity. Therefore, Plaintiff has adequately alleged injury traceable to
Defendants’ conduct. See Pub. Serv. Co. of Colo., 2010 WL 1568574 at *2.
Defendants’ arguments that Plaintiff has not established traceability are
unconvincing. See (Doc. # 33 at 11, 13.) First, Defendants contend that a violation of a
monitoring requirement can never cause an injury; rather, any recreational, aesthetic, or
physical injuries can be traced only to actual “actual exceedances of emission limits.”
(Id. at 11.) The Court has already rejected this argument. As the Court explained
above, violations of monitoring and reporting requirements are injuries. See, e.g., Pub.
Serv. Co. of Colo., 2010 WL 1568574 at *2.
Second, Defendants assert that Plaintiff’s members must be able to trace their
injuries to specific periods of “unexcused monitor downtime” (i.e., specific periods for
which the COMS data is not available). (Doc. # 38 at 7.) This argument has been
squarely rejected by courts. As the Fifth Circuit described, “[n]o relevant case law
supports [the] argument that [a plaintiff claiming violation of pollution standards] must
connect the exact time of their injuries with the exact time of an alleged violation by [the
defendant].” Texans United for a Safe Econ. Educ. Fund v. Crown Cent. Petroleum
Corp., 207 F.3d 789, 793 (5th Cir. 2000); see also Concerned Citizens Around Murphy
v. Murphy Oil USA, Inc., 686 F. Supp. 2d 663, 661 (E.D. La. 2010) (“[the plaintiff] need
not pinpoint the exact times of violations and link its members’ injuries to permit
violations at those times”). Such an argument fails in part because it conflates the issue
of standing with the issue of actual liability. Texans United, 207 F.3d at 793.
The third element of standing requires a plaintiff to show that “it is likely, as
opposed to merely speculative, that the injury will be redressed by a favorable decision.”
Laidlaw, 528 U.S. at 181. However, a plaintiff “need not show that a favorable decision
will relieve his every injury.” Larson v. Valente, 456 U.S. 228, 243 n.15 (1982). Nor
does a plaintiff need to show that a favorable decision will completely relieve an injury; it
is enough that a favorable decision will make progress in resolving the problem. See
Mass. v. EPA, 549 U.S. 497, 525 (2007).
A plaintiff must demonstrate redressability separately for each form of relief
sought. Laidlaw, 528 U.S. at 185 (citing Lyons, 461 U.S. at 109; Lewis v. Casey, 518
U.S. 343 n.6 (1996)). The Court therefore separately discusses each form of relief
requested by Plaintiff. See (Doc. # 15 at 16.)
First, Plaintiff requests declaratory judgment that “Defendants’ failure to
continuously monitor opacity at [the Plant] violates the Clean Air Act.” (Id.) The Court is
satisfied that declaratory judgment, if issued, would redress Plaintiff’s injury.
Defendants rely on Steel Co., 523 U.S at 106, to argue that a declaratory judgment is
meaningless, see (Doc. # 38 at 8), but the Supreme Court’s ruling in Steel Co. is easily
distinguished. In Steel Co., there was “no controversy over whether [a manufacturing
company] failed to file reports” required by the Emergency Planning and Community
Right-to-Know Act, or over “whether such a failure constitute[d] a violation;” the
manufacturing company admitted as much. 523 U.S. at 106; see id. at 87–88. Thus,
the Supreme Court held that declaratory judgment that the manufacturing company
violated the act would be “worthless to respondent” (the membership organization
challenging the company) and would be “seemingly worthless to all the world.” Id. at
106. In the instant matter, however, whether Defendants violated the CAA is in dispute.
A declaratory judgment would have value to Petitioner and its members as they seek to
impose civil penalties on Defendants and to recover fees and costs from Defendants.
Second, Plaintiff asks for injunctive relief ordering Defendants to comply with all
continuous opacity monitoring requests and enjoining Defendants from operating the
Plant until they do so. (Doc. # 15 at 16.) This injunctive relief would certainly redress
Plaintiff’s injuries, particularly its members’ curtailment of recreational activities near the
Plant for fear of not knowing air quality information.
Third, Plaintiff requests an assessment of civil penalties against Defendants,
pursuant to 42 U.S.C. § 7604(a) and 40 C.F.R. § 19.4. (Id.) It has long been
recognized that “all civil penalties have some deterrent effect” where citizens face
ongoing violations. Laidlaw, 528 U.S. at 185 (quoting Hudson v. United States, 522
U.S. 93, 102 (1997)). Plaintiff asserts that Defendants’ violations of opacity monitoring
requirements “are repeated and likely to continue,” (Doc. # 15 at 15), and the Court
accepts this as true at this juncture. See Gladstone Realtors, 441 U.S. at 109 n.22.
Laidlaw is persuasive, as the Supreme Court held that because the citizen plaintiffs
faced ongoing violations of the Clean Water Act, a sanction—such as a civil penalty—
“that effectively abates that conduct and prevents its recurrence provides a form of
redress.” 528 U.S. at 185–86. The same logic applies to civil penalties awarded under
However, the Court agrees with Defendants’ argument that civil penalties are not
appropriate as to Unit 5 of the Plant. See (Doc. # 33 at 15–16.) It is undisputed that
Unit 5 was permanently retired in December 2016. (Id. at 15.) In Steel Co., 523 U.S. at
106–07, the Supreme Court held that “citizen suitors lack standing to seek civil penalties
for violations that have abated by the time of the suit.” Laidlaw, 528 U.S. at 187–88
(citing Steel Co., 523 U.S. at 106–07). See also Gwaltney of Smithfield, Ltd. v.
Chesapeake Bay Found., Inc., 484 U.S. 49, 59 (1987) (“citizens . . . may seek civil
penalties only in a suit brought to enjoin or otherwise abate an ongoing violation”). Any
violations at Unit 5 of the Plant are “wholly past violations,” see Laidlaw, 528 U.S. at
188, depriving Plaintiff of the ability to sue to assess penalties.
Accordingly, the Court concludes that Plaintiff has presented specific facts
establishing the three elements that are the “irreducible constitutional minimum of
standing.” See Def. of Wildlife, 504 U.S. at 560. Plaintiff has standing to bring this
action against Defendants, although it does not have standing to seek civil penalties for
violations at Unit 5 of the Plant. Defendants’ Motion for Summary Judgment is denied.
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
The Plant’s Title V operating permit enumerates exceptions to its requirement of
continuous opacity monitoring:
CSU shall ensure that all continuous emission and opacity monitoring systems
required are in operation and monitoring unit emissions or opacity at all times
that the boiler combusts any fuel except during those periods identified in 40
CFR Part 75 § 75.11(e) and during periods of calibration, quality assurance, or
preventative maintenance performed pursuant to 40 CFR Part 75 § 75.21 and
Appendix B, periods of repair, periods of backups of data from a data acquisition
and handling system or recertification performed pursuant to 40 CFR Part 75 §
(Doc. # 33-1 at 30) (emphasis added).
Plaintiff seeks summary judgment that Defendants violated the Clean Air Act on
91 occasions for which opacity data is unavailable because, Plaintiff asserts, none of
the above-listed exceptions applied to those 91 instances of downtime. (Doc. # 34.)
Relying only on Defendants’ LogBook entries and the quarterly reports Defendants filed,
Plaintiff asserts that the 91 incidents were not excused by any exception and were
therefore violations of the Clean Air Act. (Id. at 14–19.)
However, Defendants set forth in their response (Doc. # 37) “specific facts
showing that there is a genuine issue for trial.” See Anderson, 477 U.S. at 256
(emphasis added). Defendants’ expert report by Ralph Roberson, a professional
engineer with extensive experience in emissions, details each of the 91 incidents
individually. (Doc. # 33-1 at 86–115.) Relying on a site visit, interviews with
Defendants’ employees, and documentation, Defendants’ expert explains what caused
each “event” of downtime and how Defendants responded. (Id. at 99–108). These
explanations are significant probative evidence that may support a finding that the
incidents of downtime were excused and thus, a verdict in Defendants’ favor. See
Jaramillo, 680 F.3d at 1269.
The Court concludes that there are genuine issues of material fact as to whether
the 91 incidents of downtime were excused pursuant to the Permit’s terms. Plaintiff is
not entitled to judgment as a matter of law that these incidents violated the Clean Air
Act. The Court denies Plaintiff’s Motion for Partial Summary Judgment (Doc. # 34.)
Accordingly, it is ORDERED that Defendants’ Motion for Summary Judgment
(Doc. # 33) is DENIED. It is
FURTHER ORDERED that Plaintiff’s Motion for Partial Summary Judgment
(Doc. # 34) is DENIED.
DATED: January 8, 2018
BY THE COURT:
CHRISTINE M. ARGUELLO
United States District Judge
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