2020 Environmental Real Estate Issues

The US Court of Appeals for the 8th Circuit rejected a novel attempt by a federal district (trial) court judge to remedy air pollution from a power plant.  In US v. Ameren Missouri, the district court judge determined Ameren’s power plant located 35 miles south of St. Louis had made modifications and operated without obtaining permits required by the Clean Air Act (CAA).  The judge also determined the modifications did not meet the CAA’s technology requirements.

As part of the remedy, the district court judge entered an injunction ordering another Ameren power plant, located 35 miles west of St. Louis, to reduce its emissions.  The district court judge noted the relative proximity of the two plants and that pollution from the plant in violation “affects the same communities as those affected by” emissions from the other plant.

Injunction Limited to Plant that Had Violations
Ameren appealed to the 8th Circuit, which affirmed the determination that Ameren’s modifications violated the CAA but reversed the component of the remedy requiring emission reductions at the other Ameren plant.

The CAA gives courts power to order injunctions to remedy harms caused by CAA violations.  However, according to the 8th Circuit, a court’s injunctive power is limited to the plant that had the violations.  The government never alleged the power plant 35 miles west of St. Louis had ever violated the CAA.  Therefore, it was improper to order emission reductions from that other power plant.

To see the 8th Circuit’s opinion https://ecf.ca8.uscourts.gov/opndir/21/08/193220P.pdf