Jump to Navigation
Jump to Content

Wildearth Guardians v. Lamar Utilities Board

ELR Citation: 42 ELR 20212
Nos. 1:09-cv-02974-DME-BNB, (D. Colo., 09/28/2012) (Ebel, J.)

A district court held that utilities violated CAA §112(g) by upgrading an existing power plant in Lamar, Colorado, from a natural gas-fired plant into a coal-fired one without receiving a maximum achievable control technology (MACT) determination. When the state environmental agency first issued the utilities a construction permit for the project, EPA's Delisting Rule and the Clean Air Mercury Rule (CAMR) were in effect. The Delisting Rule removed electric utility steam-generating units (EGUs) from §112 coverage, and the CAMR set nationwide mercury emission limits and established a voluntary cap-and-trade system for new and reconstructed EGUs. The utilities therefore argued that the project, even though a major source of hazardous air pollutants, was not required to obtain a MACT determination. But that was only the case until March 14, 2008, when the D.C. Circuit issued its mandate in New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008), vacating the Delisting Rule and the CAMR and reinstating the requirement for a MACT determination. Therefore, the project was in violation of §112(g) beginning March 14, 2008, until the state agency modified the project’s permit on July 25, 2012.