CHICAGO — A federal appeals panel has determined an environmental activist group can’t sue electrical plant operator Dynegy Energy in connection with coal ash contamination of the Vermilion River.
The Vermilion Power Station, a coal-fired plant, is situated five miles north of Oakwood, about 10 miles west of Danville in east central Illinois. The power plant opened in the mid-1950s. It closed in 2011, but three inactive, unlined pits still contain about 3.3 million cubic yards of coal ash.
Prairie Rivers Network sued under the Clean Water Act, alleging Dynegy illegally discharged the ash, polluting the river.
After U.S. District Judge Colin Bruce determined the law didn’t cover the groundwater discharges in question, he dismissed the lawsuit for lack of jurisdiction. The U.S. Seventh Circuit Court of Appeals stayed PRN’s appeal, pending a U.S. Supreme Court decision on a Hawaii lawsuit. But in an opinion issued June 28, a Seventh Circuit three-judge panel said PRN lacks standing, and upheld the dismissal.
Seventh Circuit Judge Michael Brennan wrote the opinion; Judges Joel Flaum and Ilana Rovner concurred.
According to Brennan, the Illinois Environmental Protection Agency issued Dynergy a National Pollutant Discharge Elimination System permit and allows for direct discharges from nine external outfalls. However, the lawsuit concerned alleged indirect discharges from the pits starting in May 2013.
Brennan further said Judge Bruce’s dismissal relied on a finding the Clean Water Act doesn’t govern or sufficiently regulate discharges from artificial ponds. The appeals panel denied PRN’s motion for summary reversal, prompting the group to request permission to submit declarations from members and staff to support its claim to standing. Dynegy opposed that motion.
Although associations like PRN are allowed to sue on behalf of members even if the group has no legal injury, Brennan said there are limits on associational standing specifically in regard to environmental disputes forcing groups to identify who suffers harm and in what fashion, rather than rely on speculation.
“In its complaint, PRN maintains it has more than 1,000 members yet fails to show at least one who has individual standing,” Brennan wrote. “Although ‘individual members of PRN live near, study, work, and recreate in and around the Middle Fork, including in the vicinity of the Vermilion Power Station,’ we do not know — based on the face of the complaint —who these members are or how exactly the alleged discharges will harm them individually.”
At each stage of pleading, Brennan wrote, “standing for at least one individual member remains an essential component of associational standing.” Even without supplying the names of members who suffered legal injury from the contamination, the agency failed to meet minimum requirements to establish its right to sue.
Texas-based Vistra, which absorbed Dynergy in a corporate merger after the plant closed, reached a deal with the Illinois Attorney General’s Office on June 21 to drain the pits and dig a trench to collect contaminated groundwater, as well as monitor riverbank erosion after major storms.
Brennan said PRN’s “complaint is facially deficient as to associational standing,” and even though Dynegy only challenged standing at the appellate stage, the request to file supplemental declarations is unallowable because the panel won’t let PRN retroactively remedy a defect after final judgment from a district court.
Because the circuit court’s dismissal on jurisdictional grounds is without prejudice, Brennan said, PRN may file a new complaint rather than try to correct its original pleading through the requested declarations.
PRN has been represented in the action by attorneys Thomas Cmar, of EarthJustice, of Chicago, and Ellyn Bullock, of the firm of Solberg & Bullock, of Champaign.
Dynegy has been represented by attorneys Daniel J. Deeb, and others with the firm of Schiff Hardin, of Chicago, and Allyson N. Ho, and others with the firm of Gibson, Dunn & Crutcher, of Dallas.