Cases & Deals

OG&E wins motion to dismiss in suit regarding alleged violations of Clean Air Act

Clients Oklahoma Gas and Electric Company

Jones Day assisted Oklahoma Gas and Electric Company ("OG&E") in securing the dismissal of a declaratory judgment action filed by the Environmental Protection Agency ("EPA") and intervenor Sierra Club (collectively "Plaintiffs") for alleged violations of the Clean Air Act. On January 15, 2015, U.S. District Judge Timothy DeGuisti of the Western District of Oklahoma dismissed the declaratory judgment action for a lack of subject matter jurisdiction.

In U.S. v. Oklahoma Gas and Electric Company, Plaintiffs filed an action seeking a declaration that OG&E violated federal New Source Review regulations by improperly projecting whether various projects at its generating facilities would result in emissions increases of regulated pollutants. Plaintiffs further sought an order requiring OG&E to redo those pre-project emissions projections, and to submit them to EPA for approval, several years after OG&E completed the projects at issue.

The court held that it lacked subject matter jurisdiction over Plaintiffs' claims because Plaintiffs failed to present an actual "case or controversy" as required by Article III of the Constitution. Specifically, the court found that Plaintiffs asked the court to determine the sufficiency of OG&E's emissions projections, admittedly only "in anticipation of bringing an enforcement action for a PSD permit violation" in the future. The "case or controversy" requirement, however, forbids the use of declaratory judgment for "such anticipatory purposes." Thus, the court denied "EPA's attempt at piecemeal litigation," holding that it lacked subject matter jurisdiction to "make a declaration as to a collateral legal issue governing aspects of a future potential suit."

The court also ruled in the alternative that, even if Plaintiffs had presented a case or controversy under Article III, it would have nonetheless "decline[d] to exercise jurisdiction" over the request for declaratory relief. In support of that alternative ruling, the court found that Plaintiffs improperly sought a declaration related to past conduct, where declaratory judgment is instead meant to set out the legal rights and obligations of the parties in "anticipation of some future conduct," and Plaintiffs' request for a "declaration" ordering OG&E to make pre-project emissions projections for projects completed years ago—and to submit them to EPA for approval—was actually a request for injunctive relief for which Plaintiffs lacked "statutory or regulatory authority."

The court dismissed EPA and Sierra Club's complaints without prejudice. In a separate order, the court denied EPA's motion for summary judgment as moot.

U.S. v. Oklahoma Gas and Electric Company, Case No. CIV-13-690-D (W.D. Okla.)

We use cookies to deliver our online services. Details of the cookies and other tracking technologies we use and instructions on how to disable them are set out in our Cookies Policy. By using this website you consent to our use of cookies.