The challenged permits were issued to the Huntley and Dunkirk power plants by the New York State Department of Environmental Conservation (New York DEC). The plants are two of the state's most notorious polluters, responsible for 38% of sulfur dioxide and 21% of nitrogen oxide emitted by all power plants statewide. Because EPA is responsible for reviewing and vetoing any permit that violates the law, the New York Public Interest Research Group (NYPIRG) petitioned EPA to veto the permits. After EPA denied NYPIRG's request, Earthjustice filed a lawsuit on behalf of NYPIRG in the U.S. Court of Appeals for the Second Circuit.
"This case confirms the vital principle that the federal government cannot postpone the Title V process for monitoring and controlling emission reductions at plants that have been cited for air quality violations by the state," said Keri Powell, the Earthjustice attorney who represented NYPIRG in the case. "It also upholds the central intent of Congress in enacting Title V by ensuring that the public will be able to access all relevant information about plant emissions in a timely fashion."
Under Title V of the Clean Air Act, major air pollution sources such as power plants, incinerators, and large factories must obtain a permit that governs their day-to-day operations. This Title V permit must include all air pollution limits that apply to the facility, as well as monitoring, recordkeeping, and reporting requirements that will assure the facility's compliance with those limits. In addition, a permit issued to a facility that is already violating an air pollution limit must include a "compliance schedule" consisting of enforceable measures designed to bring the facility into compliance.
Prior to issuing permits to the Huntley and Dunkirk plants, the New York DEC had already issued a "notice of violation" to the plant owners declaring that the plants had been violating air pollution limits for many years. Yet DEC issued the permits without including the relevant emission limits, or a compliance schedule that would bring the facilities into compliance with those limits.
"While this is absolutely a victory for the people living near the Huntley and Dunkirk power plants, it is also a victory for every American," said Jason K. Babbie, Senior Environmental Policy Analyst at NYPIRG. "Today's court decision upholds the government's responsibility to act quickly to address violations that threaten our health and environment, and requires that the public be included in that process."
In a settlement entered last January between the New York DEC and NRG Energy—owners of the two power plants—NRG agreed to reduce pollution levels from the plants significantly. However, that settlement was entered without utilizing Title V procedures, which ensure that the public has an opportunity to evaluate the agreed-upon compliance measures and challenge those measures if they find them to be inadequate. According to the Court: "It is laudable that the parties have reached a settlement that significantly reduces emissions. But because that agreement does not erase the very real dispute between NYPIRG and the EPA over the Congressionally authorized method for enforcement of the Act, our conclusions are unaffected by that settlement. The EPA may choose to enforce the Act by any additional channels it deems strategic, but an enforcement proceeding does not relieve the EPA of its obligations under the permitting process."