The U.S. Supreme Court will not hear an appeal from Dallas-based Luminant seeking to topple Clean Air Act limits on emissions increases resulting from planned startups and shutdowns of its power plants. The state's largest generator of electricity sought an exemption for these operations from fines levied by the EPA.
"We are disappointed with the decision not to grant certiorari, but respect the Court's decision," a company spokesman wrote in an emailed statement to Unfair Park.
The dead end of this appellate road follows a 5th U.S. Circuit Court of Appeals decision that was at least a partial victory for a company already deeply in debt. Power plants are like cars. When you start them up, they don't burn fuel quite as efficiently as they do when the motor is purring. These periods of high emissions are called upsets. And this fight is about when generators get to claim limited protection from civil penalties if they experience one. The EPA found that there was no reason Luminant should be exempted during the planned shutdowns and startups that cause these upsets. That's why it wouldn't greenlight Texas clean-air plan. The exemptions, the agency argued, gave Luminant and other generators carte blanche to flout pollution limits and invoke a "affirmative defense" against penalties.
It added that planned upsets could be scheduled for periods when the plant would be offline anyway. The appeals court agreed, but angered environmentalists when its ruling allowed Luminant to claim protection from fines during unforeseeable shutdowns or malfunctions.
The decision did leave one interesting door wide open: While Luminant and other generators may catch a break from the EPA on unplanned upsets, environmentalists are still free to drag the company into court to challenge emissions violations.
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