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Sierra Club v. FutureGen Industrial Alliance

ELR Citation: 44 ELR 20131
Nos. 13-CV-3408, (C.D. Ill., 06/09/2014) (Bruce, J.)

A district court dismissed an environmental group's citizen suit in which it alleged a power company was attempting to construct a major modification of its coal-fired power plant in Illinois without a PSD permit in violation of the CAA. The project will physically replace an existing boiler with a new oxy-combustion capable boiler that will use the existing equipment. Other existing boilers at the plant have been shut down and will not be restarted. The group sought a court order requiring the company to obtain a PSD permit for the project. But the court dismissed the case under the Burford abstention doctrine. The company sought the necessary permits from the state environmental agency, which determined that a PSD permit was not necessary. But instead of brining the case before the Illinois Pollution Control Board (IPCB), the group filed suit in federal court because their attorney did not know IPCB procedure. While the lack of an appropriate state forum may prevent abstention, an attorney’s ignorance of the procedures before the state agency has never been found to be a bar to abstention by a federal court. Here, Illinois offers an appropriate forum, and the exercise of federal review in this case would be disruptive of the state's efforts to establish a coherent policy with respect to pollution control. Abstention, therefore, is appropriate.