Conservation Law Foundation v. PSNH CV-11-353-JL 9/27/12

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Conservation Law Foundation

v. Civil N o . 11-cv-353-JL Opinion N o .

Public Service Company of New Hampshire

MEMORANDUM ORDER

This is a citizen suit brought by the Conservation Law

Foundation (“CLF”), which alleges that Public Service Company of

New Hampshire (“PSNH”) has violated the Clean Air Act (“CAA”),

et seq., by operating Merrimack Station, a coal-

fired power plant, without (or in violation of) required permits.

Specifically, CLF alleges in Counts 1 through 4 of its complaint

that PSNH failed to obtain permits prior to making changes to the

plant in 2008 and 2009. These changes, it claims, have resulted

and will continue to result in increased pollutant emissions. In

Counts 5 and 6, CLF alleges that PSNH failed to obtain permits

prior to installing and operating sorbent and activated carbon

injection equipment at the plant, and in Count 7 , CLF alleges

that PSNH operated electrostatic precipitators at the plant in

contravention of its temporary permits. CLF seeks a declaratory

judgment that PSNH has violated the CAA, an award of civil penalties payable to the United States Treasury, and various

injunctive relief.

PSNH has moved to dismiss the entire action pursuant to Rule

12(b)(1) of the Federal Rules of Civil Procedure, arguing that

CLF has not alleged sufficient facts to demonstrate that it has

Article III standing to bring this suit.1 See U.S. Const. art.

III, § 2 , c l . 1 . PSNH argues that CLF’s complaint fails to

allege that any of its members suffered any injury as a result of

PSNH’s alleged CAA violations, as is required to establish

standing. PSNH further asserts that Counts 5 through 7 of CLF’s

complaint allege “wholly past violations,” and that there is “no

possibility of an imminent future violation,” such that CLF is

unable to establish the redressability requirement of Article III

standing as to those claims.

After hearing oral argument, this court denies the motion as

to Counts 1 through 4 and grants the motion as to Counts 5

through 7 . CLF’s allegations, which are supplemented by

affidavits and other supporting documents, are sufficient (at

least at this stage of the case) to demonstrate that its members

1 PSNH also filed a separate motion to dismiss Counts 1-4 (but not Counts 5-7) for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). Because the questions presented by that motion are also at issue in a case pending before the Court of Appeals for the Sixth Circuit, see United States v . DTE Energy et a l . , No. 11-2328 (6th Cir. Oct. 2 5 , 2011), this court will refrain from ruling on PSNH’s Rule 12(b)(6) motion until that court renders its decision. See Order of Sept. 4 , 2012.

2 suffered a cognizable injury from the CAA violations alleged in

Counts 1 through 4 , and that the alleged injury is redressable

through the claims brought here. CLF has not shown, however,

that it suffered any injury traceable to the violations alleged

in Count 7 , or that this court can redress the injuries alleged

in Counts 5 , 6, or 7 . Those claims are accordingly dismissed.

I. Applicable legal standard

In considering a motion to dismiss for lack of standing

under Rule 12(b)(1), the court “accept[s] as true all well-

pleaded factual averments in the plaintiff’s complaint and

indulge[s] all reasonable inferences therefrom in his favor.”

Katz v . Pershing, LLC,

4 , 70 (1st Cir. 2012) (internal

quotation marks omitted). The court may also consider material

outside the pleadings, such as affidavits, to aid in its

determination. Gonzalez v . United States,

(1st Cir. 2002). “[A] suit will not be dismissed for lack of

standing if there are sufficient allegations of fact . . . in the

complaint or supporting affidavits.” Gwaltney of Smithfield,

Ltd. v . Chesapeake Bay Found., Inc.,

9 , 65 (1987)

(internal quotations omitted).

The parties dispute the level of specificity required of

those allegations. PSNH, relying on United States v . AVX Corp.,

(1st Cir. 1992), argues that the facts establishing

3 CLF’s standing must be set forth with “heightened specificity.”

CLF, on the other hand, argues that the standard articulated in

AVX applies, at most, to intervenors in appellate cases, and that

more generally applicable rules of pleading also apply to factual

allegations regarding a plaintiff’s standing to sue in the

district court. Both parties are, to some degree, correct.

In AVX, the National Wildlife Federation, an intervenor in

the case below, sought to appeal a consent decree entered in the

district court.

. The Court of Appeals, surveying

“various classes of cases in which we have required a heightened

degree of specificity to withstand a motion to dismiss,”

concluded that “[b]ecause standing is fundamental to the ability

to maintain a suit, . . . where standing is at issue, heightened

specificity is obligatory at the pleading stage.”

.

As articulated by the Court of Appeals, this burden “cannot be

satisfied by purely conclusory allegations or by a Micawberish

reading of a party’s generalized averments.”

Instead, the

complainant “must set forth reasonably definite factual

allegations, either direct or inferential, regarding each

material element needed to sustain standing.”

In other

words, “the facts necessary to support standing must clearly

appear in the record and cannot be inferred argumentatively from

averments in the pleadings.”

(internal quotations omitted).

4 In this court’s view, AVX’s description of this standard as

one of “heightened specificity” merely reflects the pleading

paradigm in 1992, the year that case was decided. At that time,

it had been accepted for over 30 years that under Rule 8 of the

Federal Rules of Civil Procedure, a complaint was facially

deficient only if “it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle

him to relief.” Conley v . Gibson,

1 , 45-46 (1957). As

the Supreme Court later explained, some lower federal courts read

this statement in isolation to say that, unless the “factual

impossibility” of plaintiff’s recovery was evident on the face of

the complaint itself, the pleading would suffice under Rule 8 .

Bell Atl. Corp. v . Twombly,

(2007). Under this

reading, “a wholly conclusory statement of claim would survive a

motion to dismiss whenever the pleadings left open the

possibility that a plaintiff might later establish some set of

undisclosed facts to support recovery.”2

(internal

quotations and alterations omitted). Thus, some courts had held

that, so long as one could “imagine facts consistent with [the]

complaint and affidavits that [would] show plaintiffs’ standing,”

2 The Court also noted that “this approach to pleading would dispense with any showing of a reasonably founded hope that a plaintiff would be able to make a case,” and, echoing AVX, wryly commented that “Mr. Micawber’s optimism would be enough.” Twombly,

(internal quotations and citations omitted).

5 the complaint would pass muster. Alliant Energy Corp. v . Bie,

, 920 (7th Cir. 2002) (emphasis omitted; citing

cases); see also, e.g., Ed Miniat, Inc. v . Globe Life Ins. Group,

Inc.,

(7th Cir. 1986); Dudley v . S e . Factor

& Fin. Corp.,

(5th Cir. 1971).

It was against that backdrop that AVX was decided. Taken in

context, AVX’s rejection of “conclusory allegations” and

“generalized averments” in favor of “factual allegations, either

direct or inferential, regarding each material element needed to

sustain standing,”

, might well have been

characterized as a “heightened” standard. In today’s post-

Twombly pleading paradigm, though, that standard is the rule, not

the exception. Twombly makes clear that “conclusory allegations”

are insufficient, and it is not enough that the complaint’s

allegations are “merely consistent with” the plaintiff’s ability

to recover. Twombly,

. “Threadbare recitals of

the elements of a cause of action” (or, as is the case here, the

elements of standing) similarly “do not suffice.” Ashcroft v .

Iqbal,

(2009). Instead, the complaint must

contain some “factual content that allows the court to draw the

reasonable inference” that the plaintiff may recover.

The Supreme Court’s proclamations in Twombly and Iqbal do

not differ materially from the Court of Appeals’ holding in AVX.

Insofar as PSNH argues that this court must apply the standard

6 articulated in that case, then, it is correct, and CLF is equally

correct that this court must apply generally applicable pleading

standards. To the extent that PSNH argues that AVX requires more

specific allegations than the Rule 8 standard articulated in

Twombly and Iqbal, though, it is incorrect. And, to the extent

that CLF suggests it should be held to a lesser standard than

that set forth in AVX, Twombly, and Iqbal, it is also incorrect.

II. Background

PSNH operates plants that generate electricity in several

locations in New Hampshire; these include Merrimack Station in

Bow. Merrimack Station, which consists of two units dubbed “MK1"

(in operation since 1960) and “MK2” (in operation since 1968),

generates power by burning coal. In addition to generating

power, this process emits pollutants, including nitrogen oxide

(NO x ), sulfur dioxide (SO 2 ), and particulates, into the air. NOx

and SO 2 emissions have significant adverse effects on public

health. These emissions also contribute to the formation of

secondary particulate matter that may cause decreased lung

function, worsened respiratory infections, heart attacks, and the

risk of early death.

CLF is a nonprofit organization, with more than 300 members

in New Hampshire, that works to reduce emissions from coal-

burning power plants. CLF alleges that its members are exposed

7 to pollution from Merrimack Station, and that they suffer from,

and are at increased risk o f , a variety of adverse health effects

attributable to this exposure. CLF has submitted the affidavits

of two of its members, who live in the immediate vicinity of

Merrimack Station and express “concern” about the health effects

of its emissions of pollutants.

As part of the CAA regulatory scheme, the Environmental

Protection Agency has established National Ambient Air Quality

Standards (“NAAQS”) that it has deemed “requisite to protect the

public health” and “the public welfare.”

(b);

see

et seq. The CAA requires each state,

including New Hampshire, to implement and enforce these standards

through a “state implementation plan,” or “SIP”, which must

include a plan for “New Source Review” (“NSR”), i.e., for

regulating the construction of and major modifications to air

pollution sources within the state. See generally

. For areas that have not achieved NAAQS, states are

required to have a “Non-Attainment NSR” (“NA-NSR”) plan. See

generally

§§ 7501-7515. Merrimack County, in which Merrimack

Station is located, has been designated a non-attainment area for

ozone. See

. To diminish emissions, the CAA

also established the “Prevention of Significant Deterioration,”

or “PSD” program. See generally

.

8 Under both the NA-NSR and PSD programs, covered facilities

are subject to emissions standards. Among other things, the PSD

program requires that certain facilities meet best available

control technology (“BACT”) standards.

§ 7475(a)(3). For

its part, the NA-NSR program requires that facilities in non-

attainment areas comply with the lowest achievable emission rate

(“LAER”). Id. § 7503(a)(2). Merrimack Station, due to its age,

has not yet been required to comply with those standards. See

United States v . Cinergy Corp.,

, 709 (7th Cir. 2006)

(explaining that the CAA “treats old plants more leniently than

new ones because of the expense of retrofitting pollution-control

equipment,” in the “expectation that old plants will wear out and

be replaced by new ones that will be subject to the more

stringent pollution controls” for new plants).

CLF alleges that PSNH has repeatedly failed to comply with

the permitting requirements of the CAA and New Hampshire’s SIP,

which has also enabled it to avoid its obligation to observe the

BACT and LAER standards. In April 2006, PSNH began a program to

design, install, and operate an activated carbon and sorbent

injection system (“ACI system”) at Merrimack Station, the purpose

of which was to reduce mercury emissions. Work on the ACI system

continued over the next several years; although this work was

supported by the U.S. Department of Energy, PSNH did not obtain

preconstruction, operating, and PSD permits for the ACI system.

9 CLF alleges that on several occasions between January 2007 and

April 2008, PSNH used the ACI system to inject magnesium oxide,

trisodium hydrogendicarbonate dihydrate, and activated carbon

into the emissions from the plant. On each occasion, this

resulted in “increased opacity,” meaning that the particulate

emissions were visible to the naked eye. PSNH discontinued the

ACI system in 2009.

In 2008, PSNH replaced a steam turbine in MK2 and, at the

same time, replaced or installed other equipment in MK2. CLF

alleges that, before those changes were made, PSNH projected that

they would cause an increase in annual NOx emissions, but failed

to obtain permits that, CLF contends, are required under the New

Hampshire SIP and the CAA by virtue of the increased emissions.

In 2009, PSNH shut down MK2 for several months to perform

additional modifications to the turbine and the unit as a whole.

CLF alleges once again that, although the 2009 modifications

resulted in increased pollutant emissions, PSNH did not obtain

the necessary permits.

CLF also alleges that PSNH operates electrostatic

precipitators3 on MK1 and MK2 under temporary permits issued by

3 Electrostatic precipitators, or ESPs, reduce particulate emissions. See Compl. ¶ 8 2 . “The basic process by which an ESP works to capture flyash from the flue gas is to remove particles from the gas exhaust stream by electrically charging the particles and then attracting them to collection plates having the opposite charge.” Sierra Club v . Tenn. Valley Auth.,

the New Hampshire Department of Environmental Services. CLF

contends that PSNH did not operate the precipitators as required

by the permits on several occasions in 2008 and 2009, and that

PSNH further failed to comply with the permits’ recordkeeping and

recording requirements. PSNH represents that it now operates the

electrostatic precipitators under a new and current permit, with

which it is in compliance. CLF does not dispute that

representation.

III. Analysis

Article III of the Constitution “limits the jurisdiction of

federal courts to ‘Cases’ and ‘Controversies.’” Lujan v .

Defenders of Wildlife,

(1992) (quoting U.S.

Const. art. III, § 2 , c l . 1 ) . One facet of this case-or-

controversy requirement is the doctrine of standing, which serves

to ensure that the plaintiff “is a proper party to invoke

judicial resolution of the dispute and the exercise of the

court’s remedial powers.” Warth v . Seldin,

(1975). “[A] plaintiff must demonstrate standing for each claim

he seeks to press and for each form of relief that is sought.”

Davis v . F.E.C.,

(2008) (internal quotations

omitted). To meet this burden, the plaintiff must show that “(1)

it has suffered an injury in fact that is (a) concrete and

Supp. 2d 1357, 1363 (N.D. Ala. 2009).

11 particularized and (b) actual or imminent, not conjectural or

hypothetical; (2) the injury is fairly traceable to the

challenged action of the defendant; and (3) it is likely, as

opposed to merely speculative, that the injury will be redressed

by a favorable decision.” Friends of the Earth, Inc. v . Laidlaw

Envtl. Servs. (TOC), Inc.,

(2000). “An

association has standing to bring suit on behalf of its members

when its members would otherwise have standing to sue in their

own right, the interests at stake are germane to the

organization’s purpose, and neither the claim asserted nor the

relief requested requires the participation of individual members

in the lawsuit.”

.

As noted, PSNH challenges CLF’s standing to pursue all seven

counts of its complaint. PSNH does not dispute that the

interests at stake here are germane to CLF’s purpose and that the

suit does not require the participation of any CLF’s members. It

argues, however, that CLF has not sufficiently alleged that any

of its members were injured by the alleged CAA violations such

that they “have standing to sue in their own right.”

PSNH

also argues that CLF lacks standing as to Counts 5 through 7

because it cannot establish “that the injury will be redressed by

a favorable decision.”

The court denies PSNH’s motion as to Counts 1 through 4 , but

grants it as to Counts 5 through 7 . As discussed in more detail

12 below, CLF’s allegations are sufficient, at least at this point

in the case, to establish that its members have suffered injury,

in the form of air pollution generated by PSNH’s Merrimack

Station, that is traceable to the CAA and SIP violations alleged

in Counts 1 through 6. CLF has not, however, sufficiently shown

an injury to its members resulting from the violations alleged in

Count 7 ; nor has it shown that the injuries alleged in Counts 5

through 7 are redressable by this court.

A. Counts 1 through 4

Counts 1 through 4 arise out of PSNH’s alleged failure to

obtain permits before making changes and repairs to MK2 in 2008

and 2009. As already discussed, CLF alleges that before making

these changes, PSNH projected that the new turbine would cause an

increase in NOx emissions, but nonetheless failed to obtain the

required permits. In response to PSNH’s contention that CLF has

not alleged any injury to its members, CLF argues that it has

sufficiently alleged that this increase in emissions caused

physical harm to its members. The court agrees that based upon

CLF’s allegations and the present state of the record, Counts 1

through 4 withstand PSNH’s motion--at least for now.

In its complaint, CLF alleges that the increased emissions

caused by PSNH’s CAA violations “are degrading the quality of air

breathed by” CLF members. Compl. ¶ 3 . Because they are “exposed

13 t o , and threatened with exposure t o , particles and other

pollution from Merrimack Station,” CLF avers, its members “suffer

from, and are at increased risk o f , a variety of adverse health

effects.”

¶ 1 7 . CLF further alleges that its members “use

and enjoy New England and New England’s natural resources for

hiking, camping, fishing, sightseeing, and other recreational and

aesthetic purposes,”

¶ 1 6 , and that Merrimack Station’s

emissions “interfere[] with their use and enjoyment of property

and the surrounding areas, den[y] them protection of their health

and well-being . . . , and negatively impact[] their aesthetic

and recreational interests,”

¶ 1 9 .

PSNH, again citing AVX, argues that these allegations are

too “general and conclusory” and “not anchored in any relevant

particulars.” Memo. in Supp. of Mot. to Dismiss (document n o .

14-1) at 12-13. PSNH suggests that because CLF did not “identify

any specific member who suffered injury, [and] his or her place

of abode or their frequency of use,” CLF has failed to clear the

hurdle of showing injury to its members.

at 1 3 . Assuming,

dubitante, that PSNH is correct and that these omissions render

the complaint’s allegations “too meager, vague, or conclusory to

remove the possibility of relief from the realm of mere

conjecture,” Katz,

3 , CLF has successfully remedied

that deficiency.

14 In response to PSNH’s motion, CLF has supplemented the

allegations of its complaint with the affidavits of two of its

members.4 Elizabeth Kruse of Candia, New Hampshire, and Robert

Backus of Manchester, New Hampshire, who are presently CLF

members (and were at the time of PSNH’s alleged violations), both

attest that they live within ten miles of Merrimack Station.5

Both claim to be impacted by airborne pollutants emitted from the

station and concerned about the health effects of their exposure

to those pollutants. Kruse states that she suffers from heart

arrhythmia, which she understands can be exacerbated by exposure

to air pollution. To the extent that the complaint’s allegations

fail to meet AVX’s pleading standard, these affidavits remove any

doubt. These are not the type of “nebulous allegations regarding

[CLF’s] members’ identities and their connection to the relevant

geographic area” which the AVX court decried.

.

To the contrary, CLF has “clearly identified” two of its members

4 As previously noted, this court may consider affidavits and other material outside the pleadings in determining whether the plaintiff has standing to bring suit. Gonzalez,

- 8 8 ; see also, e.g., Torres-Negrón v . J & N Records, LLC,

(1st Cir. 2007). 5 Timothy Harwood, CLF’s Vice President for Development, has also submitted an affidavit attesting to his understanding that 39 CLF members live within 20 kilometers of Merrimack Station, and an additional 93 CLF members live within 50 kilometers of the station.

15 who “reside[] in a single, defined [geographic] area, directly

affected by the challenged action.”

PSNH, focusing on Kruse’s and Backus’s expressed concern

about the health impacts of the station’s emissions, argues that

“generalized concerns” are insufficient to show an actual injury.

But CLF articulates more than mere concerns; it claims its

members are directly exposed to pollutants by virtue of their

proximity to the station.6 It is a “bedrock proposition” that

“even an identifiable trifle” of an injury “is enough to confer

standing.” Katz,

6 . And, in this context, “likely

exposure to pollutants is certainly something more than an

identifiable trifle.” Sierra Club v . Franklin Cnty. Power of

Ill., LLC,

(7th Cir. 2008) (quoting LaFleur

v . Whitman,

(2d Cir. 2002)); see also Hall

v . Norton,

(9th Cir. 2001) (“[E]vidence of a

credible threat to the plaintiff’s physical well-being from

airborne pollutants falls well within the range of injuries to

6 To this end, CLF has also submitted an affidavit from Kenneth Colburn, an energy, emissions, and climate change consultant and former Director of the Air Resources Division of the New Hampshire Department of Environmental Services. Colburn’s affidavit echoes and adds flesh to some of the allegations of the complaint. He explains that MK2 is a major source of numerous pollutants, including NOx and SO 2 , which adversely impact public health and the environment. These pollutants, he says, also contribute to the creation of other pollutants, including ozone and particulate matter, which have further adverse impacts on public health and the environment.

16 cognizable interest that may confer standing.”); Texans United

for a Safe Econ. Fund v . Crown Cent. Petroleum Corp.,

(5th Cir. 2000) (“[B]reathing and smelling polluted air

is sufficient to demonstrate injury-in-fact and thus confer

standing under the CAA”). Moreover, “where plaintiffs reside in

close proximity to sources of air pollution, ‘uncertainty’ as to

the health effects of such pollution constitutes cognizable

injury-in-fact.” Baur v . Veneman,

(2d Cir.

2003).

A more vexing question is whether this injury was caused by

PSNH’s allegedly unlawful activity–-or, to use Laidlaw’s

terminology, is “fairly traceable” to that activity.

. Unlike many environmental lawsuits that challenge the

planned construction of a pollutant-emitting facility, this suit

challenges changes to an existing facility that was already

operating and emitting pollutants. In light of this

idiosyncracy, the fact that CLF’s members may be exposed to

pollutants from Merrimack Station i s , standing alone, not enough

to confer standing: the real question is whether those members

are exposed to different or greater amounts of pollutants than

they would have been had the permitting process been observed.7

7 The court pauses to note that although this order has repeatedly referred to exposure to pollutants as the “injury” CLF’s members suffered, the real harm to those members (if any) may have been a denial of the opportunity to participate in the

17 If not, any injury to CLF’s members necessarily results from

extant emissions, and cannot confer standing on CLF to bring the

claims it asserts in this case.

CLF argues that the 2008 turbine project and the 2009

repairs to MK2 increase emissions of pollutants because they

allow the facility to operate more frequently. CLF relies upon

the affidavit of consultant Kenneth Traum, who attests that “the

replacement of the steam turbine with one which creates more

electricity and operates more cost effectively than that which it

replaced”–-which was the quintessence of the changes at issue in

permitting process. Cf. Compl. ¶ 18 (“CLF members have been deprived of the opportunity to review and comment publicly on the full range of project impacts that will affect their interests”). A defendant’s failure to engage in the process necessary to obtain a required permit, which would allow public scrutiny and comment, can satisfy the “actual injury” element of standing under certain circumstances. See, e.g., Nw. Envtl. Def. Ctr. v . Owens Corning Corp.,

(D. Or. 2006). However, “[a] mere inability to comment effectively or fully, in and of itself, does not establish an actual injury.” AVX,

. The plaintiff must still show that it suffered “a distinct and palpable injury” due to the defendant’s actions.

Quite understandably, then, the parties’ briefs have focused on injuries allegedly suffered from the plant’s emissions, and this court’s order follows suit. Mindful of its duty to police the borders of its own jurisdiction, however, see Spielman v . Genzyme Corp.,

, 4 (1st Cir. 2001), the court has independently satisfied itself that CLF has standing to enforce the procedural rights at issue here, as “the procedures in question are designed to protect [a] threatened concrete interest” of CLF’s members, i.e., their interest in a pollution-free air, “that is the ultimate basis of [CLF’s] standing.” Lujan,

n.8; see also Ctr. for Food Safety v . Vilsack,

(9th Cir. 2011).

18 Counts 1 through 4–-“will result in that unit being dispatched

more often and operating more hours per year than it otherwise

would have.” And, if the unit operates more, CLF’s reasoning

goes, emissions will necessarily increase.8 Cf. Compl. ¶¶ 5 8 ,

6 3 , 74 (alleging that emissions increases were projected as a

result of MK2 turbine replacement and repairs). In response,

PSNH offers an evaluation of Merrimack Station by the New

Hampshire Department of Environmental Services (“DES”), dated

October 1 8 , 2011, which reports that Merrimack Station has not,

in fact, increased emissions since the 2008 and 2009 changes.

CLF argues, however, that the report is wrong because it is based

on erroneous calculations.

The dispute about whether Merrimack Station’s emissions

increased (or are likely to increase) as a result of the 2008 and

2009 changes, and how to calculate those emissions, goes straight

to the merits of CLF’s claims in Counts 1 through 4 . With

respect to existing sources of pollution, the permitting

requirements at issue apply only to “modifications” or “major

8 Traum concedes that he is “not an expert in pollution controls at power plants,” but opines that “it is apparent that if the facility operates more . . . , all other things being equal, it will emit more air pollution . . . .” At this stage of the case the court believes it reasonable to infer from the facts alleged that emissions did or are likely to increase as a result of the turbine replacement and related repairs. See Katz,

(in considering Rule 12(b)(1) motion to dismiss, court should “indulge all reasonable inferences” in plaintiff’s favor).

19 modifications,” that i s , those changes that result in emissions

increases. See

(a)(4);

(b)(2);

N.H. Code Admin R. Env-A 101.57 (1990). Thus, if the 2008 and

2009 changes did not, or are not likely t o , result in emissions

increases, that would not only deprive plaintiffs of standing, it

might well dispose of Counts 1 through 4 on their merits.

As the Court of Appeals has explained:

Where the jurisdictional issue and substantive claims are so intertwined the resolution of the jurisdictional question is dependent on factual issues going to the merits, the district court should employ the standard applicable to a motion for summary judgment. Thus, where the relevant facts are dispositive of both the 12(b)(1) motion and portions of the merits, the trial court should grant the motion to dismiss only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law. If the plaintiff presents sufficient evidence to create a genuine dispute of material (jurisdictional) facts, then the case proceeds to trial, so that the factfinder can determine the facts, and the jurisdictional dispute will be reevaluated at that point.

Torres-Negrón,

(internal quotations, citations,

and alterations omitted). The “material jurisdictional facts”

here are very much in dispute. This court accordingly has no

license at this stage of the case to decide one way or the other

whether the changes alleged in Counts 1 through 4 increased

Merrimack Station’s emissions or are likely to do so in the

future. Because there is a genuine dispute of material fact as

to that issue, those claims may proceed–-for now. The court will

20 revisit CLF’s standing to bring Counts 1 through 4 once the facts

are more fully developed.

B. Counts 5 and 6

In Counts 5 and 6, CLF alleges that PSNH violated the CAA

and the New Hampshire SIP by installing and operating the ACI

system without the required permits. In moving to dismiss these

counts, PSNH once again argues that CLF has not alleged an injury

to its members that is traceable to the ACI system. PSNH also

argues that because it had discontinued the ACI system before

this suit was filed, CLF cannot show a likelihood that its

members’ injuries can be redressed by a favorable decision. CLF

retorts that, again, its members were exposed to pollutants as a

result of PSNH’s operation of the ACI system, and asserts that

this harm is redressable because there is a possibility that PSNH

could reinstate the ACI system.

The court need not analyze CLF’s allegations of injury in

detail. As already mentioned, see supra Part I I , CLF alleges

that each operation of the ACI system resulted in increased

particulate emissions. And, as just discussed, “likely exposure

to pollutants” is a sufficient injury to confer standing under

the CAA. Franklin Cnty. Power,

; Hall,

; Crown Cent. Petroleum,

. The court

21 does agree, though, that its inability to redress this injury is

an impediment to CLF’s standing to assert Counts 5 and 6.

To satisfy the redressability requirement of standing, a

plaintiff must show that “it is likely, as opposed to merely

speculative, that the injury will be redressed by a favorable

decision.” Laidlaw,

. “[T]he specific items of

relief sought” must “serve to reimburse [the plaintiff] for

losses caused by [the defendant’s wrongful a c t ] , or to eliminate

any effects of that [act] upon [the plaintiff].” Steel C o . v .

Citizens for a Better Env’t,

3 , 105-06 (1998). The

relief CLF seeks here will neither reimburse CLF (or its members)

for PSNH’s conduct, nor eliminate that conduct’s ill effects.

Before turning to the type of relief CLF seeks, the court

notes that the infractions alleged in Counts 5 and 6 are wholly

past. In support of its motion, PSNH has submitted the affidavit

of its Director of Generation, William Smagula, who attests that

PSNH decided in 2009 not to continue the ACI system, and removed

or disconnected nearly all of the equipment used for the project.

He further represents that PSNH has not used sorbent or activated

carbon injection since 2009, and has no plans to resume using

either the ACI system or that method. CLF argues that this court

cannot consider Smagula’s affidavit in the context of a Rule

12(b) motion because it contradicts allegations that are central

to the merits of CLF’s claims. See, e.g., Torres-Negrón, 504

22 F.3d at 163. The court, though, perceives no contradiction

between Smagula’s affidavit, which attests to PSNH’s present

intentions (as well as its intentions and actions before and at

the time this case was filed), and the cited portions of CLF’s

complaint, which allege only that at the time the ACI system was

installed in 2009, PSNH intended to use it “on an ongoing basis.”

Compl. ¶ 8 6 . The complaint says nothing about PSNH’s intentions

or the state of affairs at the time CLF filed this case, and CLF

has not seriously contested Smagula’s representations in any of

its submissions in response to the motion to dismiss.

The relief CLF seeks must necessarily be examined in light

of PSNH’s decision to abandon the ACI system.9 The requested

relief consists of civil penalties; a declaratory judgment that

PSNH violated the CAA by failing to obtain preconstruction

permits for the ACI system; an injunction against future

violations; and injunctions requiring PSNH to apply for required

9 CLF, citing Laidlaw, argues that the decision to abandon the ACI system “could never moot CLF’s claims or be dispositive of CLF members’ standing.” Memo. in Opp. (document n o . 20-1) at 19 n.16. It is true that the defendant’s “voluntary cessation of a challenged practice” does not render a case moot unless the party asserting mootness carries the “formidable burden” of demonstrating “that the challenged conduct cannot reasonably be expected to start up again.” Laidlaw,

. But, as the Laidlaw Court recognized, the burden of establishing standing lies with the plaintiff, and “there are circumstances in which the prospect that a defendant will engage in (or resume) harmful conduct may be too speculative to support standing, but not too speculative to overcome mootness.”

.

23 permits, to implement BACT and/or LAER, to audit all generating

stations for permit requirements, to take all necessary steps to

comply with emission standards, and to take appropriate action to

remedy impacts of CAA violations on human health and the

environment. The court addresses these in turn.

The Supreme Court has stated, in no uncertain terms, that

statutory civil penalties imposed for past wrongs will usually

not provide sufficient redress to meet the redressability

requirement. Steel Co., 523 U.S. at 106-07.10 Civil penalties

“might be viewed as a sort of compensation or redress to [the

plaintiff] if they were payable to [the plaintiff].” Id. at 106.

But where, as here, civil penalties are payable to the United

States Treasury, see

(g)(1), they can only serve

an “undifferentiated public interest” in “seeing [the defendant]

punished for its infractions.” Steel Co., 523 U.S. at 106-07.

“[A]lthough a suitor may derive great comfort and joy from the

fact that the United States Treasury is not cheated, that a

wrongdoer gets his just deserts, or that the Nation’s laws are

10 In Laidlaw, the Supreme Court clarified that, “[t]o the extent that they encourage defendants to discontinue current violations and deter them from committing future ones,” civil penalties “afford redress to citizen plaintiffs who are injured or threatened with injury as a consequence of ongoing unlawful conduct.”

(emphasis added). But where, as here, the defendant’s violation is not ongoing, Steel C o . is controlling. See, e.g., WildEarth Guardians v . Pub. Serv. of Colo., — F.3d — ,

(10th Cir. Aug. 1 0 , 2012).

24 faithfully enforced, that psychic satisfaction is not an

acceptable Article III remedy because it does not redress a

cognizable Article III injury.” Id. at 107. Similarly, a

declaratory judgment that PSNH has violated the CAA would have

little actual benefit to CLF or its members; at most, it would

appear to provide the same “psychic satisfaction” as civil

penalties. See id. at 106 (declaratory judgment that defendant

had violated statute in the past “is not only worthless to

[plaintiff], it is seemingly worthless to all the world”).

CLF’s requests for equitable relief fare no better. “[P]ast

exposure to harm will not, in and of itself, confer standing upon

a litigant to obtain equitable relief ‘absent a sufficient

likelihood that he will again be wronged in a similar way.’” Am.

Postal Workers Union v . Frank,

(1st Cir.

1992) (quoting Los Angeles v . Lyons,

5 , 111 (1983));

see also Lujan,

(“Past exposure to illegal

conduct does not in itself show a present case or controversy

regarding injunctive relief if unaccompanied by any continuing,

present adverse effects.”). Thus, to obtain such relief, the

plaintiff must allege “a continuing violation or the imminence of

a future violation.” Steel Co., 523 U.S. at 108-09.

CLF gamely asserts that, given the past violations of

permitting requirements alleged in the complaint, it is possible

(or perhaps even probable) that PSNH will violate permitting

25 requirements in the future. But a future violation must not only

be possible, but imminent, for injunctive relief to satisfy the

redressability requirement. See id.; cf. Laidlaw,

(injury must be “actual or imminent, not conjectural or

hypothetical” to satisfy requirements of standing). A mere

possibility that PSNH will again forego the permitting process

when, at some indeterminate point in the future, it undertakes to

modify its facility in some other unspecified way, does not

establish that a future violation is imminent. See Berry v .

Farmland Indus., Inc.,

(D. Kan. 2000)

(“[A] past pattern of intermittent violations . . . would not

allow a reasonable fact finder to find that future violations

were imminent when the complaint was filed.” (emphasis in

original)). The cases upon which CLF relies are not to the

contrary. Each of those cases involved an alleged violation that

was continuing to take place at the time of the suit. See Parker

v . Scrap Metal Processors,

(11th Cir. 2004);

Ass’n of Irritated Residents v . C & R Vanderham Dairy, N o . 05-cv-

1593,

, *7-*10 (E.D. Ca. Sept. 2 5 , 2007); Anderson

v . Farmland Indus., Inc.,

(D. Kan. 1999). None of them supports the proposition that

wholly past violations demonstrate a likelihood of imminent

future violations that can be addressed by injunctive relief.

26 CLF also argues that PSNH might decide to use either the ACI

system, or the activated carbon injection method, to reduce

mercury emissions in the future. It notes that Smagula, in his

affidavit, admits that PSNH has not yet removed all equipment

from the ACI system. It also cites a paragraph in a March 9,

2009 decision of the New Hampshire DES pertaining to the issuance

of a temporary permit to PSNH for the installation of a flue gas

desulfurization system to reduce mercury and SO 2 emissions at

Merrimack Station. See Compl. Ex. 4 (document n o . 1-6) at 2 3 .

The desulfurization system, or “scrubber,” appears to be the

means for reducing mercury emissions that PSNH selected to

replace the ACI system. In response to a public comment that a

scrubber could remove mercury more efficiently by using activated

carbon injection technology, the DES stated that use of a

scrubber and use of activated carbon injunction were not mutually

exclusive, and that an activated carbon injection could be used

to supplement the scrubber (cost permitting).

These

remarks, and the fact that some ACI equipment remains at

Merrimack station, do suggest a possibility that PSNH may use ACI

technology in the future. Again, though, mere possibility is not

enough: “a continuing violation or the imminence of a future

27 violation” is necessary to confer Article III standing to seek

injunctive relief. Steel Co., 523 U.S. at 108-09.11

CLF has not demonstrated a sufficient likelihood that a

favorable decision will redress the injury suffered as a result

11 CLF does seek an injunction “to remedy, mitigate, and offset the impacts of [PSNH’s] violations of the CAA and the N.H. SIP on human health and the environment.” (This appears to be a vaguely-phrased request that the court order PSNH to use some of the civil penalties mentioned above for “beneficial mitigation projects” that “enhance the public health or the environment.” See

(g)(2).) This request differs from typical injunctive relief insofar as it is remedial in nature, rather than prospective, and a different standard might arguably apply to i t . Even s o , CLF has not established redressability, because this relief is not focused on CLF members’ alleged injuries, but seeks to benefit the public at large and the environment as a whole. “A project that generally enhances the public health or environment is no more redress for plaintiffs’ particular claims than a fine that generally encourages compliance with the Act and benefits the undifferentiated public interest.” Cambrians for Thoughtful Dev., U.A. v . Didion Milling, Inc.,

(W.D. Wis. 2008) (citing Steel Co., 523 U.S. at 1 0 6 ) ; see also WildEarth,

(similar). As a further aside, the court acknowledges that CLF has contended (albeit not in the most comprehensible manner) that if PSNH had applied for permits for any of the projects alleged in Counts 1 through 6, the New Hampshire DES would have required PSNH to adopt the BACT and LAER standards at Merrimack Station. At oral argument, CLF repeated this contention, and suggested that by ordering PSNH to undertake the permitting process retroactively, this court could “redress” its members’ injuries from PSNH’s ongoing failure to observe those standards. But where redressability “depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or predict,” such as the DES, “it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and redressability of injury.” Lujan,

(internal quotations omitted). CLF has not carried that burden.

28 of the wrongful conduct alleged in Counts 5 and 6. CLF

accordingly lacks standing to bring those counts. They are

dismissed.

C. Count 7

In Count 7 , CLF alleges that in 2008 and 2009, PSNH failed

to operate the ESPs on MK1 and MK2 in accordance with its

temporary permits for them. Specifically, CLF alleges that the

permits required PSNH to operate the ESPs at all times when the

units generated power above prescribed minimums, and that some

sections of the ESPs were not operating when the station was

generating power in excess of those limits. It further alleges

that PSNH did not comply with the permits’ recordkeeping and

reporting requirements. PSNH again argues that CLF has not

alleged any injury traceable to the ESPs’ inoperation. In

addition, PSNH contends that any injury is not redressable

because its alleged violations occurred in the past and the

temporary permits are no longer in effect, having been replaced

by a Title V Operating Permit12 with different requirements for

operation of the ESPs.

12 Title V of the CAA requires every “major source” of air pollution to obtain an operating permit that contains emission limitations and other conditions to ensure compliance with air quality control standards. 42 U.S.C. § 7661a; see generally Operating Permit Program,

(July 2 1 , 1992) (later codified at

et s e q . ) .

29 The court agrees that CLF has not identified any injury its

members suffered when sections of the ESPs did not operate. CLF

alleges that ESPs are “pollution control devices operated by PSNH

to reduce particulate matter emissions.”13 Compl. ¶ 8 2 . But it

provides no explanation of how, or to what extent, occasionally

non-functioning sections of such ESPs affect air quality. Nor

does CLF allege that Merrimack Station emitted any additional

particulate matter or pollutants when the ESPs were inoperative.

It simply alleges, generally, that Merrimack Station emits

pollutants. But CLF members’ exposure to pollutants i s , of

course, not sufficient to confer standing unless that exposure is

“fairly traceable” to PSNH’s conduct. Laidlaw,

.

Moreover, even if CLF had sufficiently shown some injury to

its members as a result of PSNH’s alleged permit violations, it

has not shown that this court can redress that injury. CLF does

not dispute that PSNH’s alleged violations of the temporary

permits took place over two years before this action was filed,

with the last alleged violation in May 2009. As with Counts 5

and 6, the only relief CLF seeks for these past violations

13 PSNH provides a more complete description in its motion to dismiss, explaining that ESPs reduce particulate matter emissions by attracting electrically charged particles to collection plates with an opposite charge. See also supra n.3. According to PSNH, MK1 and MK2 were built with ESPs and supplemental precipitators were added later; together, these precipitators result in 99% efficiency of particulate removal. CLF does not dispute this.

30 consists of civil penalties, a declaratory judgment, and various

injunctive relief. But, as discussed in the foregoing section,

none of these forms of relief can serve to redress whatever past

injuries CLF’s members suffered, in the absence of a continuing

violation or an imminent future violation. CLF again argues that

PSNH’s past violations of the temporary permits’ requirements

create a substantial risk that PSNH will repeat the violations in

the future, but, as already discussed, a mere possibility of

future violations based on nothing more than a pattern of past

violations is insufficient to render a plaintiff’s injury

redressable for purposes of Article III standing. Because CLF

lacks standing to pursue Count 7 , that count is dismissed.

IV. Conclusion

For the reasons set forth above, PSNH’s motion to dismiss

for lack of standing14 is GRANTED as to Counts 5 through 7 and

DENIED as to Counts 1 through 4 .

SO ORDERED.

j/seph N. Laplante Jo ited States District Judge

Dated: September 2 7 , 2012

14 Document n o . 1 4 .

31 cc: Christophe G. Courchesne, Esq. N . Jonathan Peress, Esq. Michael D. Freeman, Esq. Spencer M. Taylor, Esq. Barry Needleman, Esq. Jarrett B . Duncan, Esq. Linda T . Landis, Esq. Wilbur A . Glahn, III, Esq. Thomas A . Benson, Esq. Elias L. Quinn, Esq. George P. Sibley, Esq. Makram B . Jaber, Esq. Stephen H. Roberts. Esq.

32