Sierra Club v. Georgia Power Co.

No. 98-9011 (180 F.3d 1309, 48 ERC 2119) (11th Cir. July 14, 1999)

The court affirms a district court's decision denying an environmental group's request to preliminarily enjoin a power company from discharging heated wastewater into a lake at temperatures above those allowed under its national pollutant discharge elimination system permit. The court holds that the record demonstrates that the only way the company could reduce thermal loading to the lake would be to reduce or eliminate its electrical generation, to the great disadvantage of the general public. Moreover, evidence reveals that fish kills resulting from warm water temperatures were temporary, not significant, and limited to a small percentage of the lake.

Counsel for Plaintiff
Donald D.J. Stack
Stack & Associates
100 Peachtree St. NW, Atlanta GA 30303
(404) 525-9205

Counsel for Defendant
Daniel S. Reinhardt
Troutman & Sanders
5200 NationsBank Plaza
600 Peachtree St. NE, Atlanta GA 30308
(404) 885-3000

Before Marcus, Hill, and Ferguson,^* JJ.

[29 ELR 21392]

Per curiam:

This is an interlocutory appeal from the district court's denial of Appellant Sierra Club's motion for a preliminary injunction pursuant to 28 U.S.C. § 1292(a). The preliminary injunction would have directed the Georgia Power Company (Georgia Power) to comply with the pollutant discharge limits of its National Pollutant Discharge Elimination System permit (the permit) issued by the Environmental Protection Agency.

Under the permit, Georgia Power is authorized to discharge heated wastewater from its coal-fired electricity generation facility (the plant) into Lake Sinclair near Milledgeville, Georgia, subject to the numerical temperature limits of "90 degrees Fahrenheit or 5 degrees above intake temperature." Sierra Club contends that Georgia Power can achieve this heat limit by reducing the amount of power generated at the plant. Georgia Power contends that it cannot do so without, contrary to the public interest, impacting upon the level of power generated throughout its entire electrical system.

Following the presentation of evidence and argument at hearing, the district court agreed with Georgia Power. It concluded that the potential harm to the general public from a reduction of electrical power or thermal loading into the lake, outweighed the potential injury to lakeside residents if the plant continued to operate at its current output pendente lite. Accordingly, the district court denied Sierra Club's motion for a preliminary injunction.

The grant or denial of a preliminary injunction is a decision within the sound discretion of the district court. United States v. Lambert, 695 F.2d 536, 539 [13 ELR 20436] (11th Cir. 1983) (citation omitted). On appeal from the grant or denial of a preliminary injunction, we do not review the intrinsic merits of the case. Id. "It is the function of the trial court to exercise its discretion in deciding upon and delicately balancing the equities of the parties involved." Id., citing Tatum v. Blackstock, 319 F.2d 397, 401-02 (5th Cir. 1963). A preliminary injunction is a "drastic" remedy, and we will disturb the denial of a preliminary injunction only if the district court abused its discretion. Crochet v. Housing Authority of Tampa, 37 F.3d 607, 610 (11th Cir. 1994) citing Cafe 207, Inc. v. St. Johns County, 989 F.2d 1136, 1137 (11th Cir. 1993).

There is adequate evidence in the record to support the district court's ruling that the grant of a preliminary injunction would be adverse to the public interest. See Lambert, 695 F.2d at 539. It is apparent from the record that the only way to reduce thermal loading to the lake (during the summer of 1998, when meteorological conditions throughout the southeastern United States were much warmer than normal) would have been substantially to reduce or eliminate electrical generation, to the great disadvantage of the general public. Further evidence reflects that fish kills resulting from warm lake temperatures were temporary, not significant, and limited to a small percentage of the lake. Expert testimony concluded that the loss of fish "should not hurt the health of the lake in general" and that in the thirty years of [29 ELR 21393] plant operation, fish kills occurred in only six of those years, and then generally only during summer heat waves of extreme temperature. In order to meet Sierra Club's demands, the plant would have to be shut down during extremely hot days, when demand for power is greatest.

We do not review the intrinsic merits of the case. Lambert, 695 F.2d at 539. It is the function of the district court to exercise its discretion and delicately to balance the equities of the parties involved. Id. The district court was correct in concluding that a steady supply of electricity during the summer months, especially in the form of air conditioning to the elderly, hospitals and day care centers, is critical.¹

Under these circumstances, we certainly cannot state that the district court abused its discretion in declining to issue a preliminary injunction. We affirm the judgment of the district court.

AFFIRMED.

* Honorable Wilkie D. Ferguson, Jr., U.S. District Judge for the Southern District of Florida, sitting by designation.

1. A plan has for some time been proposed by Georgia Power to build a forty million dollar cooling tower to prevent the risk of future violations. This proposed relief is under review by national and state administrative agencies.