E-Alert Case Updates

The Plaintiffs Awarded Attorneys’ Fees Under the Clean Air Act Where Victory Was Merely Procedural

S. Alliance for Clean Energy v. Duke Energy Carolinas, LLC
No. 08-2370 (4th Cir. 2011)
by Gregory L. Arbogast, Associate
Semmes, Bowen & Semmes (www.semmes.com)

In Southern Alliance for Clean Energy v. Duke Energy Carolinas, LLC, the United States Court of Appeals for the Fourth Circuit upheld the District Court’s award of attorneys’ fees to Plaintiffs under the Clean Air Act. The Court of Appeals found that Plaintiffs were successful on the merits of the case, despite the District Court abstaining from the case and ordering Defendants to submit to a state administrative hearing.

Duke Energy Carolinas, LLC arises out of a lawsuit under the Clean Air Act in which Plaintiffs, Southern Alliance for Clean Energy, Environmental Defense Fund, National Parks Conservation Association, Natural Resources Defense Counsel, and the Sierra Club (collectively, “Plaintiffs”), sought to enjoin Duke Energy Carolinas, LLC (“Duke Energy”) from constructing a new coal-burning power plant that had not undergone the “maximum achievable controlled technology” assessment by the North Carolina Department of Environment, as required by the Clean Air Act.

In 2005, Defendant Duke Energy applied to the North Carolina Utilities Commission for a certificate to build a new 800 megawatt coal power plant and, in March 2007, the North Carolina Utilities Commission granted that request. Defendant Duke Energy then applied to North Carolina Division of Air Quality for a construction permit to build the plant. On January 29, 2008, the Division of Air Quality granted Duke Energy’s application and Duke Energy promptly began construction on the power plant.

Plaintiffs filed a Complaint, which sought to enjoin Duke Energy from the construction of the power plant until it underwent the maximum achievable controlled technology assessment and which sought civil penalties against Duke Energy. Duke Energy filed a Motion to Dismiss, which asserted that the Clean Air Act did not govern Duke Energy’s construction permit application, and Plaintiffs filed a Motion for Summary Judgment. The District Court denied Defendant’s Motion to Dismiss and granted Plaintiffs’ Motion for Summary Judgment, dismissing the case and ordering Defendant Duke Energy to appear before the North Carolina Department of the Environment to assess whether Duke Energy was using the maximum achievable control technology to mitigate its emissions. Then, Plaintiffs filed a Motion for Attorneys’ Fees, and the District Court granted Plaintiffs’ motion.

Defendant Duke Energy appealed the award of attorneys’ fees, and argued that Plaintiffs merely had a procedural victory, not a substantive victory. The Clean Air Act authorizes an award of attorneys’ fees “whenever the Court determines such an award is appropriate.” The Supreme Court has stated, however, that the Clean Air Act does not grant unlimited discretion to the trial judge in awarding attorneys’ fees. Instead, attorneys’ fees are only to be awarded in cases where the claimant has prevailed on the merits. The Supreme Court has also determined that, where a plaintiff forces an administrative agency to perform an act required by law, the plaintiff has succeeded on the merits. Therefore, the United States Court of Appeals for the Fourth Circuit found that the Plaintiffs, in the instant case, were successful in forcing the North Carolina Department of the Environment to perform a statutorily required assessment and affirmed the award of attorneys’ fees.