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Federal court determines that prior state administrative action precludes Clean Air Act citizen suit

08.01.2011

On May 31, 2011, the Tenth Circuit Court of Appeals held that prior state court and state administrative proceedings may preclude citizen suits under the Clean Air Act, even when the plaintiffs in the citizen suit did not participate in the prior cases.

In Sierra Club v. Two Elk Generation Partners, Two Elk Generation Partners, L.P. (“Two Elk”) obtained a PSD permit to build a coal-fired power plant in Wyoming in 1998. On two separate occasions, the Wyoming Department of Environmental Quality (WDEQ) declared the permit invalid alleging that Two Elk failed to commence construction of the plant within the permit mandated timeline. On each occasion, Two Elk appealed the decision to the Wyoming Environmental Quality (WEQ) Council, a seven member DEQ administrative tribunal. Both appeals were resolved by settlement agreements resolving WDEQ’s claims that were approved by the WEQ Council after hearing in 2005 and 2007, respectively. Following resolution of the second matter, the Sierra Club intervened and appealed the WEQ Council’s approval of the settlement agreement to state court. The state court rejected Sierra Club’s arguments and affirmed the Council’s order.

Thereafter, Sierra Club filed a Clean Air Act citizen suit in federal court. The federal district court dismissed the citizen suit, holding that it was precluded by the WEQ Council’s determinations in 2005 and 2007. On appeal, the Tenth Circuit agreed holding that prior court and administrative proceedings may preclude citizen suits under the Clean Air Act, even where the plaintiffs in the citizen suit did not participate in prior cases. Specifically, the Tenth Circuit held that the Two Elk PSD permit was the central issue among the WEQ Council decisions, the state court decision, and the citizen suit, and that both the WEQ Council and the state court reached decisions based on the merits of each case.

Moreover, the Sierra Club had a full and fair opportunity to intervene and participate in previous WEQ Council proceedings but declined to do so. The Tenth Circuit held that the Sierra Club’s interests in the prior cases were represented by DEQ, because DEQ was acting on behalf of the citizens of Wyoming and for the benefit of the public welfare in earlier cases. Because Sierra Club’s position was previously represented by DEQ, and all claims raised by Sierra Club had been resolved in the earlier cases, the Tenth Circuit affirmed the dismissal of Sierra Club’s claim.


To view a complete PDF of the Second Quarter 2011 issue of the Air Quality Letter, click HERE.

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