The ongoing legal war of many fronts among Dallas-based Luminant, the state of Texas, the EPA and environmentalists is mostly a war of incremental victories.This week, EPA arose victorious. Next month or year? Anybody's guess. Just know that this time, nobody (except the EPA) is totally happy with the ruling that came out of a three-judge panel of the 5th U.S. Circuit Court of Appeals.
This is all about when the Clean Air Act allows Luminant's power plants to claim limited protection from civil penalties if they cough up more pollution than statute permits. Think of it like starting a car. During the first few moments, the emissions aren't quite as clean as they are when the engine is warmed up and purring. It's the same way with power plants -- especially Luminant's aging coal-fired plants -- when they start up.
EPA says planned start-ups and shutdowns shouldn't receive protection from penalties, but that unplanned increases in emissions, called "upsets," should. After all, if Luminant needs to plan maintenance that requires a shutdown, EPA reasons, it can schedule it for those periods when the plant would be offline anyway. That's why the agency rejected Texas' clean-air plan back in 2006. It basically gave power plants carte blanche to invoke an "affirmative defense' against penalties.
Luminant, of course, with the support of the Texas Commission on Environmental Quality, says this is as it should be.
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The Environmental Integrity Project, a party to the suit, on the other hand, argues that Luminant and the rest shouldn't be able to claim even limited protection at all, and that it's contrary to federal law. So, they sued the EPA too. The appeals court couldn't please everyone and this week cut the issue straight down the middle, finding for the EPA and for allowing limited protection from penalties during unforeseeable "upsets."
It also denied Luminant's petition to retroactively protect upsets dating back to 2006.
Luminant told the Morning News it plans to seek a rehearing before the entire court.
It was interesting that court left the door wide open for the environmental groups to continue hammering Luminant with lawsuits. Just because the power plants can seek limited protection from civil penalties for upsets from the EPA doesn't mean they can't be sued by citizens for breaking those limits.