PEORIA – A federal court's decision handed down last month against an Illinois coal-burning power generator accused of violating federal emissions laws probably will have limited effect outside Illinois, an environmental law attorney said during a recent interview.
Coal-powered operators probably will be the only part of the U.S. electricity generation sector that will be affected by the decision, said Anthony Cavender, senior counsel at Pillsbury Winthrop Shaw Pittman in Houston.
"In other parts of the country, it will have limited impact," Cavender said. "But in Illinois, well, they still use a lot of coal in Illinois."
The case, National Resources Defense Council et al v. Illinois Power Resources and Illinois Power Resources Generating, once had four not-for-profit environmental advocacy organizations as plaintiffs. Environmental Law and Policy Center voluntarily dismissed its case Feb. 26, 2015. The three plaintiffs that remain are the Natural Resources Defense Council, Respiratory Health Association, and the Sierra Club. The organizations’ case is against Illinois Power Resources Generating and its subsidiaries, alleging the power company was out of compliance with Clean Air Act emissions standards on thousands of occasions from 2008 to 2014.
Much of the case has concentrated on the operation of Illinois Power's coal-fired power plant, the E.D. Edwards Generation Plant, in downstate Bartonville, south of Peoria.
The plaintiffs brought their lawsuit under the Clean Air Act’s citizen suit provisions, claiming standing that is backed up by legal precedent, Cavender said.
"The Supreme Court has made it clear that if you can show even superficial injury, that you have standing," he said.
Illinois Power reported to the Illinois EPA 2,949 instances between April 18, 2008 and June 30, 2014 when the company exceeded the EPA's relevant opacity limits for six minutes or longer. The plaintiff's three counts of allegations are based on those instances.
As the case progressed, Illinois Power relied primarily upon two regulatory defenses. First, Illinois Power claimed to be in compliance with EPA particulate matter limits at all times, even when operations were out of compliance with opacity limits. Second, Illinois Power argued that a great number of the opacity violations should have been excused because they occurred during periods of malfunction or breakdown.
There were no defenses that Illinois Power was barred from using, Cavender said.
"They were not barred from using any defenses," Cavender said. "They just weren't successful."
In an opinion handed down Aug. 23, the U.S. District Court for Illinois Central District ruled against Illinois Power, saying the power generator failed to establish that it was entitled to regulatory and statutory defenses in this case.
"The court said they failed to meet all the environmental requirements to allow those defenses to be available," Cavender said.
The court also found that Illinois Power didn't conduct required tests within a required time frame and that its regulatory malfunction defense depended on strict compliance with regulatory requirements. The court also found that the EPA and state authorities provided fair notice of all requirements.
What impact this case may have in other litigation against power plant operators, both in Illinois and beyond, is difficult to predict, as the Clean Air Act assumed enforcement will always happen at the state and federal levels, Cavender said.
"It would be limited to Illinois, at least in how rules and regulations are applied in Illinois," he said.
It also is difficult to say if there is potential of a similar reasoning being applied in litigation against other source emitters, such as factories or refineries, Cavender said.
"I guess it may establish a precedent about how these particular rules will be applied," he said.
The case may help guide future decisions about how emitters, state by state, will be able to use defenses available to them, Cavender said.
"In that way, it could have some impact on similar litigation down the road," he said.
Meanwhile, consumers are not likely to notice any immediate change in their power bills as a result of the decision.
"I just don't know if there will be any impact on consumers," Cavender said. "However, if more coal-powered plants have to be closed and there's nothing to take up the slack, consumers just might notice some impact there."