8th Circuit gives Ameren partial reprieve from Clean Air Act order

(Reuters) - A federal judge in St. Louis went beyond the Clean Air Act’s catch-all authorization of “any other appropriate relief” by ordering Ameren Missouri to reduce sulfur emissions at two of its coal-burning plants after finding violations at only one of them, the 8th U.S. Circuit Court of Appeals held Friday.

The 8th Circuit affirmed that Ameren had violated the Clean Air Act (CAA) in 2007 and 2010, when it replaced major components of two aging coal-fired boiler units at Rush Island Energy Center, south of St. Louis, without seeking a permit. It also affirmed the lower court’s order to install stringent pollution control devices at Rush Island.

However, the panel reversed the lower court’s order to reduce emissions at Ameren’s four-unit Labadie plant, 35 miles west of St. Louis.

“Because Ameren committed no violation of the CAA at its Labadie plant, the district court lacked authority to authorize injunctive relief as to it,” Circuit Judge Lavenski Smith wrote for the panel. He was joined by Circuit Judges James Loken and Michael Melloy.

Attorneys for Ameren at Riley Safer Holmes & Cancila, Schiff & Hardin, and Armstrong & Teasdale did not respond to requests for comments on Friday. The U.S. Chamber of Commerce filed an amicus brief in support of Ameren, which was joined by America’s Power, the National Association of Manufacturers, and several other business organizations.

The Environmental Protection Agency and its attorneys at the Justice Department, which filed the suit in 2011, also had no immediate response. The Sierra Club intervened as a plaintiff after the 2016 presidential elections.

Andy Knott, Interim Central Region Director of the Sierra Club - Beyond Coal Campaign, called the panel’s unanimous affirmance of the Rush Island violations and remedy “a significant win.” As for Labadie, “we are reviewing the decision more closely to determine our next steps,” he added.

According to the 8th Circuit, Rush Island’s two coal-fired units were built in the mid-1970s without any control devices for sulfur dioxide.

In 1977, Congress amended the Clean Air Act to require permits for new construction and “major modifications” of pollution-emitting facilities, with limits based on the “best available control technology” (BACT) standard.

Ameren argued that the Rush Island modifications were routine maintenance or otherwise exempt from the permit requirement. U.S. District Judge Rodney Sippel disagreed, finding Ameren liable in 2017.

In 2019, after a separate remedies phase, Sippel ordered Ameren to apply for a permit based on a technology that could reduce emissions by 95 percent or more. The 8th Circuit affirmed that part of his ruling.

However, Sippel had also found the boiler modifications allowed Ameren to emit an extra “162,000 tons — and counting” of sulfur dioxide since 2007. That harm was “best remediated” by also reducing emissions at Labadie, which “affects the same communities … and to the same degree,” Sippel ruled.

“Here, the government never provided notice of or alleged that Ameren’s Labadie plant committed a violation of the CAA,” Smith wrote for the 8th Circuit. “The plain language of (the law) and caselaw make clear that the injunctive relief a district court may award must redress a violation of the CAA.”

The case is United States of America, Sierra Club, intervenor, v. Ameren Missouri.

For the U.S.: Thomas Benson, U.S. Justice Department; Suzanne Moore, U.S. Attorney’s Office, St. Louis

For Sierra Club: Sanjay Narayan, Sierra Club

For Ameren Missouri: Ronald Safer of Riley Safer Holmes & Cancila, Mir Ali of Schiff & Hardin, Thomas Weaver of Armstrong & Teasdale