Sierra Club Ordered to Pay Luminant's Attorneys' Fees in Big Brown Suit

For years, Luminant's Big Brown coal-fired plant has been described as one of the worst air polluters in the state, sitting at or near the top of the EPA's list of plants spewing nitrogen oxide, which can cause respiratory illnesses. So, it would seem a ripe target for a Clean Air Act lawsuit filed by the Sierra Club.

Taking a shot at Big Brown, however, could wind up costing the environmental group more than $6 million. Turns out, Big Brown may pump out a lot of nasty stuff into the air, but no more than its operating permit allows. U.S. District Judge Walter Smith ruled that the Sierra Club knew that when it filed an unsuccessful Clean Air Act suit against the plant's owner, Luminant, and last week he ordered the Club to pay the power company's legal bills for what he called a "frivolous" suit.

Frivolous is the key word here, and it could factor into decisions to sue polluters in the future.

By using that word, Judge Smith means, essentially, that the lawsuit never should have been brought in the first place. Gabriel Eckstein, an environmental law professor at Texas A&M who was not involved in the case, said its use surprised him.

"Frivolous means you intentionally wanted to waste everybody's time," he says, and in lawsuits such as this one that's been going on since summer 2012, it's uncommon for a court to find that it was groundless.

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"This is an unprecedented decision," says Jenna Garland, a spokesperson for the Sierra Club. "The Supreme Court imposed a very high bar on attorney fee orders in the civil rights era, because the fear of being slapped with fees can stunt the ability of citizens to hold violators of federal law -- whether civil rights or environmental -- accountable."

It takes a lot of money to sue big companies and because of that there's a provision in the Clean Air Act that allows for the shifting of the payment of attorneys' fees. It's meant to make environmental litigation against polluters affordable to regular citizens.

"Plaintiffs get their fees (paid) as a matter of course," says Daniel Riesel, a renowned environmental lawyer in New York, "because they're doing God's work. Defendants have a harder row to hoe."

Defendants don't get their attorneys' fees paid unless they can show the lawsuit had no merit in the first place, Riesel says.

In his opinion, Judge Smith wrote that the Sierra Club "was aware that Big Brown's Title V permit exempted it from [particulate matter] deviations during maintenance, startup, or shutdown activities prior to filing suit, which rendered the claim meritless. And at trial, [the club] failed to prove any causation or injury to its lone standing witness or any other individual. Moreover, the one standing witness in the case was not even placed on [the club's] witness list even with the awareness that proving causation and linking the opacity violations at issue to injuries was required in order to prevail."

Could the judge's decision deter people from suing large power companies in the future, since there's the prospect of having to pay the other side's legal fees?

"If [a lawsuit] is in fact off the wall," Riesel says, "people are not going to be chilled."

If a lawsuit is close, he adds, then there might be a chilling effect.

The Sierra Club will appeal the ruling.

Garland declined to speak about the Sierra Club's finances but said, "No fee award will deter the Sierra Club from its core mission of protecting communities from pollution."

In his opinion, Smith wrote that Luminant argued "that [the club] is one of the most well-funded environmental organizations in the U.S. and has the ability to pay the requested fees."

Naturally, the Sierra Club disagreed with the decision.

"Luminant's own reports indicated that its plants were emitting pollution that exceeded Clean Air Act limits," Dr. Al Armendariz, the senior campaign representative of the club's Beyond Coal campaign in Texas, said in a statement. "We presented substantial amounts of evidence at trial showing that this pollution could have been prevented by the company, and brought this case in the interest of safeguarding downwind communities. We are confident the court of appeals will reverse this decision."

Luminant has maintained that it has always been in compliance with environmental laws.

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Sky Chadde
Contact: Sky Chadde