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Grand Canyon Trust v. Tucson Elec. Power Co.

ELR Citation: 34 ELR 20086
Nos. No. 03-15584, (9th Cir., 09/02/2004)

The Ninth Circuit reversed a district court's dismissal of an environmental group's suit alleging that a power company was operating its electric-generating plant in violation of the CAA. The power company received a construction permit from EPA in 1977. In 1978, EPA incorporated best available control technology (BACT) requirements into its regulations but "grandfathered" permits that had already been issued, such as the power company's 1977 permit, as long as construction commenced by March 19, 1979. The environmental group claimed that the company failed to commence construction by the deadline and, therefore, the company was required to comply with the BACT requirements. The district court dismissed the suit, holding that the suit was barred by laches. The power company, however, did not establish the type of expectation-based prejudice required to assert the defense of laches. Neither the requirement that the company replace its emission-control equipment, nor the potential for civil fines, establishes the type of expectations-based prejudice that laches requires. The district court's final summary judgment based on laches was therefore reversed.