November 14, 2018

PSD Preconstruction Permits: Fifth Circuit Bars Government’s Civil Penalty Claims as Untimely But Remands to the District Court to Consider Whether Equitable Relief May be Available to the Government

John L. Watson

Luminant Generation Company and Big Brown Power Company (“Utilities”) constructed power plants in Texas before the passage of the 1977 amendments to the federal Clean Air Act (CAA). Their power plants are considered “major sources” of air pollution and thus, in the normal course, the Utilities would be required to obtain preconstruction permits for modifications to the facilities as required by the prevention of significant deterioration (PSD) provisions of the CAA. Having failed to obtain the permits, the United States sued, seeking civil penalties and injunctive relief. The district court dismissed the government’s civil penalty and injunctive relief claims based on the passage of the general federal five-year limitations period imposed under 28 U.S.C. § 2462 and also dismissed injunctive relief claims for lack of jurisdiction.

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