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CleanCOALition v. TXU Power

ELR Citation: 38 ELR 20182
Nos. No. 07-50685, (5th Cir., 07/21/2008)

The Fifth Circuit upheld the dismissal of a Clean Air Act (CAA) citizen suit seeking to enjoin a power company from constructing a pulverized coal-fired power plant in the plaintiffs' community. The CAA does not authorize federal court jurisdiction to redress alleged pre-permit, preconstruction, pre-operation CAA violations. When a facility is still in the pre-permit, preconstruction, pre-operation stage, it has yet to emit anything and cannot be deemed "to have violated . . . or be in violation of an emission standard or limitation." In addition, the company's mere filing of an alleged incomplete permit application does not constitute a violation of an emission standard or limitation under the CAA. Nor does the Act provide federal courts with jurisdiction in preconstruction citizen suits against facilities that have either obtained a permit or in the process of doing so. The lower court, therefore, properly dismissed the case for lack of subject matter jurisdiction.