Energy Law 360 is reporting that Energy Future Holdings Corp (owner of Luminant power in Texas) and the Sierra Club have reached a deal concerning litigation that the Sierra Club filed against the Luminant Big Brown power plant in Texas and other coal-fired power plants owned by Luminant.
Energy Law 360 reports:
The energy company said Monday that it wouldn't pursue $6.4 million in attorneys' fees that a Texas federal judge had ordered the Sierra Club to pay in August for filing what he described as a "frivolous" litigation.
Sierra Club had filed litigation against the Big Brown plant in Texas alleging violation of particulate emission limitations and violation of opacity limitations on the Big Brown plant. However Sierra Club lost its claims about numerical particulate emission limitation violations on summary judgement before the federal court because SC did not have specific evidence on the actual numerical magnitude of the claimed particulate emission standard violations.
After losing summary judgement on that issue, all SC had left was a case claiming that the Big Brown plant violated its opacity limits, but it could only show such visible emission standard violations for less than about 1.5% of the plant units operating time.
After a 3 day bench trial, the federal judge ruled that Sierra Club had not demonstrated that the facility was in violation under the requirements of their Title V permit and that the cited opacity excursions were not actionable as Clean Air Act violations and permit condition violations as the Texas Commission of Environmental Quality had previously determined. After that, the federal judge granted Luminant's motion for a $6.4 million award of attorney fees, expert witness fees and court costs.
Here is coverage of that original decision:
Dallas Observer:
http://blogs.dallasobserver.com/...
Dallas Morning News:
http://bizbeatblog.dallasnews.com/...
legal blog:
http://environblog.jenner.com/...
I don't have a copy of the settlement document at this point so I cannot tell if it contains any provisions addressing Luminant's other coal plants that can be claimed as benefits to emission control at those plants or whether the sole thing SC gets out of the settlement is not having to pay the $6.4 million federal court judgement. In a settlement of this nature, I would expect that SC will probably agree to withdraw their appeal of the judge's order which they previously announced they would pursue.