8th Circuit grants Ameren partial stay of Clean Air Act order

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

The 8th Circuit claimed Ameren violated the Clean Air Act (CAA) in 2007 and 2010, replacing major components of two aging coal-fired boilers at the Rush Island Energy Center, south of St. Louis, without applying for a permit . He also upheld the lower court order to install strict pollution control devices on Rush Island.

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

“Because Ameren did not commit any CAA violations at its Labadie plant, the district court did not have the power to grant an injunction in this regard,” circuit judge Lavenski Smith wrote for the panel. He was joined by circuit judges James Loken and Michael Melloy.

Ameren’s attorneys at Riley Safer Holmes & Cancila, Schiff & Hardin and Armstrong & Teasdale did not respond to requests for comment on Friday. The United States Chamber of Commerce filed an amicus case in favor of Ameren, which was joined by America’s Power, the National Association of Manufacturers and several other trade organizations.

The Environmental Protection Agency and its attorneys at the Department of Justice, which filed the complaint in 2011, also did not receive an immediate response. The Sierra Club intervened as a complainant after the 2016 presidential elections.

Andy Knott, Interim Central Region Director of the Sierra Club – Beyond Coal Campaign, called the Rush Island Violations and Redress Panel’s unanimous claim a “significant victory.” As for Labadie, “we are looking more closely at the decision to determine our next steps,” he added.

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

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

Ameren argued that the modifications to Rush Island constituted routine maintenance or were otherwise exempt from the requirement for a permit. U.S. District Judge Rodney Sippel disagreed, holding Ameren responsible in 2017.

In 2019, after a separate appeal phase, Sippel ordered Ameren to apply for a permit based on technology that could reduce emissions by 95% or more. The 8th Circuit confirmed this part of its decision.

However, Sippel had also discovered that the boiler modifications allowed Ameren to emit “an additional 162,000 tonnes – and it is not over” of sulfur dioxide since 2007. This damage was “best repaired” by also reducing emissions in Labadie, which “affects the same communities … and to the same degree,” Sippel ruled.

“Here, the government never notified or alleged that the Ameren factory in Labadie committed a CAA violation,” Smith wrote for the 8th Circuit. “The plain language of (the law) and the case law make it clear that the injunction a district court may grant is to remedy a CAA violation.”

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

For the United States: Thomas Benson, United States Department of Justice; Suzanne Moore, United States Attorney’s Office, St. Louis

For the 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