United States v. EME Homer City Generation, L.P.
A circuit court has once again rejected the government’s invitation to rehear whether a PSD violation is a one-time or continuous violation. On December 12, 2013, the Third Circuit denied petitions from the United States, and the States of New York, New Jersey and the Commonwealth of Pennsylvania, Department of Environmental Protection for panel rehearing and rehearing en banc. The petitions sought rehearing of the Third Circuit’s August 21, 2013 opinion affirming dismissal of the entire suit, including all penalty, injunctive relief and Title V claims. No judge who concurred in the decision asked for rehearing and a majority of the circuit judges did not vote for rehearing.As we previously reported, the Third Circuit held that the failure to obtain a PSD permit is a one-time violation and the statute of limitations bars penalty claims brought more than five years after the construction. On November 27, the government petitioned the Third Circuit to rehear the case. Both the United States and the states asserted that the Third Circuit improperly found that a PSD violation is a single violation and that the government’s injunctive relief claims should not have been dismissed. The government’s deadline to petition for writ of certiorari is March 12, 2014.
United States v. Midwest Generation, LLC
Earlier this year the Seventh Circuit also ruled that a PSD violation is a one-time violation and denied the government’s petitions for panel rehearing and rehearing en banc. The government had until December 19, 2013 to file a petition for writ of certiorari but it appears that the government has not sought Supreme Court review.
