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Wildearth Guardians v. Public Service Co. of Colorado

ELR Citation: 42 ELR 20171
Nos. 11-1400, (10th Cir., 08/10/2012)

The Tenth Circuit dismissed as moot an environmental group's CAA citizen suit against an energy company for building a new coal-fired power plant in Pueblo, Colorado, without a valid construction permit. Although the project initially complied with all applicable federal and state laws when construction began in 2005, the regulatory landscape changed in 2008 after a decision of the D.C. Circuit required regulators to impose additional CAA requirements upon new power plant construction. After the decision, the company worked with the relevant agencies to come into compliance with the modified regulatory regime while construction of the plant continued. The group filed suit, seeking civil penalties and an injunction to halt construction until the company complied with the Act. While this litigation was pending, the company finished constructing the plant and came into compliance with the new regulatory regime. In most CAA citizen suits, mootness is difficult to establish because the plaintiff's interest in deterring the defendant from future violations is sufficient to sustain a constitutional case or controversy between the parties. Under the unusual circumstances of this case, however, the company's alleged CAA violations could not reasonably be expected to recur, and thus no deterrent effect could be achieved.