Implications Of US v. EME Homer City Generation

Originally published in Law360, New York November 10, 2011

On Oct. 12, 2011, a federal district judge in Pennsylvania dismissed with prejudice a Clean Air Act lawsuit against current and former owners and operators of the Homer City power plant, brought by the U.S. Environmental Protection Agency, Pennsylvania, New Jersey and New York (collectively, "plaintiffs").

The decision in U.S. v. EME Homer City Generation LP by the U.S. District Court for the Western District of Pennsylvania adds to the emerging judicial consensus that allegedly unlawful construction under the act's Prevention of Significant Deterioration program is a point-in-time violation.

Likewise, the court rejected the plaintiffs' attempt to recast their PSD preconstruction-permit claims as Title V operating-permit violations, instead adopting an integrated reading of the statute that acknowledges the distinct functions of PSD and Title V programs as established by Congress.