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United States v. Oklahoma Gas & Electric Co.

ELR Citation: 45 ELR 20014
Nos. 13-690, (W.D. Okla., 01/15/2015) (DeGiusti, J.)

A district court dismissed EPA's lawsuit against an Oklahoma utility under the CAA alleging that it failed to properly project whether modifications made to two coal-fired power plants would result in an increase in emissions. The plants were constructed before Congress enacted the PSD program. As a result, the plants have grandfathered status but may be subject to permit requirements under the PSD program if they undergo major modifications. In this case, whether the utility should have obtained a PSD permit before commencing the modifications is central to the dispute. But EPA did not seek enforcement of the permit requirements or penalties for permit violations. Nor did it allege that the modifications are major or that emissions from the plants constitute significant emissions increases. Rather, EPA challenged the legal sufficiency of the utility's "project notifications" as projections of post-construction emissions. Such projections allow operators to determine whether the modification may constitute a major modification that would then require a permit. The Agency, in anticipation of bringing an enforcement action for a PSD permit violation, therefore sought a declaratory judgment on the matter. But the piecemeal adjudication that EPA seeks in this litigation is prohibited because Article III's case or controversy requirement bars use of the Declaratory Judgment Act for such anticipatory purposes. The court, therefore, lacks jurisdiction.