No Time Bar for Injunctive Relief for New Source Review Violations, 5th Circuit Rules

Clean Air Act: Smog vs. Clear Day

On October 1, the U.S. Court of Appeals for the 5th Circuit held that there is no statute of limitations applicable to an EPA enforcement action for injunctive relief for violations of the  New Source Review (NSR) requirements in the Clean Air Act. United States v. Luminant Generation Co., No. 17-10235, (5th Cir., October 1, 2018). Injunctive relief could include forcing emissions cuts from the air emission sources involved. Even though financial penalties are precluded by the 5-year statute of limitations in enforcement actions for NSR violations that occurred more than 5 years before suit was filed, the Court ruled that claims for injunctive relief are not barred by the statute of limitations. The opinion finds that the government, in its sovereign capacity, is not barred by any statute of limitations unless Congress expresses its clear consent to such a bar. The 5-year statute of limitations does not mention injunctive relief, so there is no time bar to claims for such relief.  The Court, therefore, remanded the case to the district court to determine whether injunctive relief is appropriate and, if so, what relief should be awarded.

For more information on New Source Review requirements, or on Clean Air Act compliance generally, contact Steve O’Day or Phillip Hoover.

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