EME wins dismissal of putative class action alleging violations of Clean Air Act and state law
Clients EME Homer City Generation, L.P.
Jones Day is defending EME Homer City Generation, L.P. ("EME"), an independent electrical power producer, in an action brought in the U.S. District Court for the Western District of Pennsylvania by a putative class of private individuals. The suit alleged violations of the Clean Air Act ("CAA"), certain of its implementing regulations, and Pennsylvania state law. Tracking the allegations in a suit by the United States and several States, the plaintiffs claimed that EME had violated the CAA's Prevention of Significant Deterioration ("PSD") provisions by operating a unit or units at a power plant that a prior owner had allegedly modified years before without obtaining PSD permits. The plaintiffs also based a variety of state law claims on these same allegations. The Court (Judge Terrence F. McVerry) dismissed with prejudice the federal claims without leave to amend, and declined to exercise supplemental jurisdiction over the state law claims. In a memorandum opinion and order dated October 13, 2011, the Court held that because the United States and several States were already prosecuting a CAA suit against EME, the CAA did not permit the Jacksons to file a citizen suit—the only mechanism through which a private person can sue under the CAA. The Court dismissed the plaintiffs' state law claims without prejudice to plaintiffs' ability to pursue them in state court.
Jackson v. EME Homer City Generation L.P. et al., No. 2:11-cv-28 (W.D. Pa.)