United States of America, Environmental Protection Agency v. Louisiana Generating, LLC

Filing 387

RULING denying 345 MOTION To Amend Summary Judgment Ruling To Certify It For Interlocutory Appeal And Motion For Stay Pending Appeal filed by Louisiana Generating, LLC. Signed by Judge James J. Brady on 10/01/2012. (SMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA
CIVIL ACTION
NO. 09-100-JJB

VERSUS
LOUISIANA GENERATING LLC
RULING

This matter is before the court on a Motion to Amend Summary Judgment Ruling to
Certify it for Interlocutory Appeal pursuant 28 U.S.C. § 1292(b) and Motion for Stay Pending
Appeal (Doc. 345), filed by Louisiana Generating LLC (“LaGen”). Plaintiff, United States of
America, filed an Opposition to the Motions (Doc. 348) and Plaintiff-Intervenor Louisiana
Department of Environmental Quality (LDEQ) filed a response not in opposition (Doc. 347).
LaGen filed a reply (Doc. 366). Oral argument is not necessary.
LaGen asks the Court to amend this Court’s Ruling (“the Ruling”) that Cajun Electric’s
Primary Reheater Replacement Projects are not RMRR (Doc. 332), to permit immediate
interlocutory appeal. The Ruling addressed two partial motions for summary judgment and a
motion for summary judgment. LaGen further asks that, were the Court to grant its Motion and
amend the Ruling to permit immediate interlocutory appeal, the Court grant a stay of further
proceedings in this matter pending resolution of the interlocutory appeal by the Fifth Circuit.
Section 1292(b) certification is appropriate when “such order involves a controlling
question of law as to which there is substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the ultimate termination of the
litigation.” 28 U.S.C. § 1292(b). The Fifth Circuit strictly construes the requirements of Section
1292(b). Ala. Labor Council v. Alabama, 453 F.2d 922, 924 (5th Cir. 1972). Interlocutory

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appeals under Section 1292(b) are only granted in “exceptional cases.” United States v. Garner,
749 F.2d 281, 286 (5th Cir. 1985).
“Although the resolution of an issue need not necessarily terminate an action in order to
be controlling, it is clear that a question of law is controlling if reversal of the order would
terminate the action.” Tesco v. Weatherford Intern., Inc., 722 F. Supp. 2d 755, 766 (S.D.Tex.
2010) (citing Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione Motonave Achille Lauro in
Amministrazione Straordinaria, 921 F.2d 21, 24 (2d Cir.1990). “On the other hand, an issue is
not seen as controlling if its resolution on appeal would have little or no effect on subsequent
proceedings.” Tesco, 722 F. Supp. 2d at 766. Whether an issue of law is controlling usually
“hinges upon its potential to have some impact on the course of the litigation.” Id.
LaGen’s claim regarding the controlling issue of law prong is that the Ruling “decided
the controlling legal question of how properly to interpret and apply the RMRR exception in the
summary judgment context.” LaGen argues that the issue is controlling, since “[i]f the jury were
to find that the RMRR exception applies, it would be a complete defense to liability in this case.”
This argument is affiliated with LaGen’s argument that the RMRR exception issue is not
appropriate for summary judgment and should be decided by a jury.
Assuming, without deciding, that the issue is a controlling one, the Court finds that
LaGen fails to show a substantial ground for difference of opinion or that immediate appeal from
the Ruling may materially advance the ultimate termination of the litigation.

Therefore,

certification for interlocutory appeal is unwarranted.
A substantial ground for difference of opinion “usually only arises out of a genuine doubt
as to the correct applicable legal standard relied on in the order.”

Property One, Inc. v.

USAgencies, L.L.C., 830 F. Supp. 2d 170, 182–83 (M.D.La. 2011). “An interlocutory appeal

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assuredly does not lie simply to determine the correctness of a judgment.” Clark–Dietz &
Assocs.-Eng’rs., Inc. v. Basic Constr. Co., 702 F.2d 67, 68 (5th Cir. 1983). Disagreement with
the district court's ruling is insufficient to establish a substantial ground for a difference of
opinion. Ryan v. Flowserve Corp., 444 F. Supp. 2d 718, 724 (N.D.Tex. 2006).
LaGen generally argues that “substantial ground for difference of opinion exists
concerning the [Ruling]’s interpretation and application of the legal standard for applying the
RMRR exception because the [Ruling]’s approach differs starkly from that of other courts in
several material aspects.” LaGen asserts three specific arguments as to why a substantial ground
for difference of opinion exists: (1) the Ruling concluded that evidence of work done at the units
in question is “much more relevant” than work done across the industry; (2) the Ruling
determined that frequency of similar work at particular units would be given “more weight” than
the overall number of similar projects across the industry; and (3) the Opinion differs from
analogous district court decisions by attaching legally dispositive weight to particular facts
without regard to context.
Each of LaGen’s three specific arguments regarding substantial ground for difference of
opinion are insufficient to meet this prong of Section 1292(b). LaGen’s first two arguments are
minor points and are not significant enough to create a substantial ground for difference of
opinion. LaGen’s third argument, that this Court attached legally dispositive weight to particular
facts, while other courts have not, also does not satisfy the standard. LaGen elaborates on this
third argument by claiming other courts “recognized that under the applicable legal standard, the
jury should be allowed to conduct the required fact-intensive analysis by weighing competing
evidence and drawing all reasonable inferences from it.” The cases cited by LaGen, however, do
not state that the RMRR inquiry cannot be decided on summary judgment.

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Nat’l Parks

Conservation Ass’n v. Tenn. Valley Auth. (TVA I), 618 F. Supp. 2d 815 (E.D.Tenn. 2009); United
States v. S. Ind. Gas & Elec. Co. (SIGECO), No. IP 99-1692-C-M/F, 2003 U.S. Dist. WL
21024595, at *3 (S.D.Ind. Apr. 17, 2003); United States v. Ohio Edison, No. 2:99-CV-1181,
2003 U.S. Dist. LEXIS 25464, at *48 (S.D.Ohio Jan. 22, 2003). Rather, these Courts held the
summary judgment standard had not been met due to fact disputes that existed in the specific
case at hand. See TVAI, 618 F. Supp. 2d at 827 (“[T]he Court finds that neither side has
established as a matter of law the applicability or non-applicability of the RMRR exclusion given
the specific facts in this case.”) (emphasis added); SIGECO, 2003 WL 21024595, at *3 (finding
summary judgment “inappropriate” due to genuine issues of material fact about a significant
factor in that case); Ohio Edison, 2003 LEXIS 25464, at *48 (Denying summary judgment due
to the presence in the record of genuine issues of material fact). This Court similarly followed
the law governing summary judgment. The fact that this Court found summary judgment was
appropriate, based on the specifics of this case, does not create a substantial ground for
difference of opinion. It just shows that the situation at hand in this case differed from that of the
cases addressed by LaGen and cited above.
LaGen’s argument that an immediate appeal may materially advance the ultimate
termination of the litigation similarly does not meet the standard provided by Section 1292(b).
Other potentially dispositive issues remain for trial. Therefore, it is the opinion of the Court that
an immediate appeal will not materially advance the ultimate termination of this litigation.
LaGen is required to meet all three prongs of Section 1292(b) for the court to grant
certification. LaGen fails to satisfy at least two of the three prongs. Certification therefore
cannot be granted in this case. As such, a stay is unnecessary.

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Accordingly, Louisiana Generating LLC’s Motion to Amend Summary Judgment Ruling
to Certify it for Interlocutory Appeal pursuant 28 U.S.C. § 1292(b) and Motion for Stay Pending
Appeal (Doc. 345) are DENIED.
Signed in Baton Rouge, Louisiana, on October 1, 2012.





JAMES J. BRADY, DISTRICT JUDGE

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