In the case of National Resources Defense Council , et al. , v. Illinois Power Resources, LLC and Illinois Power Resources Generating, LLC, decided August 23, 2016, the United States District Court for the Central of District of Illinois held that the defendants, who operate a coal-fired power plant in Bartonville, Illinois, failed to establish that they were entitled to various regulatory and statutory defenses in this Clean Air Act (CAA) citizen suit. The District Court found that the plaintiff environmental organizations had standing to file this lawsuit, observing that even an “identifiable trifle” can establish an injury-in fact.

The plaintiffs alleged that the power plant had violated the relevant opacity limits on thousands of occasions over a four-year period (2008-2014). The plant is subject to particulate matter limits, for which compliance is measured by the degree of opacity which is used as a proxy for the amount of particulate matter the plant emits. The defendant argued that it was in compliance with the particulate limitations at all times, including those times when it was not in compliance with the opacity limits. Moreover, most of the opacity exceedances occurred during those times when the plant’s emission control equipment had malfunctioned or had broken down, but the Illinois EPA allows the plant to continue to operate when this happens.

To avail itself of the Illinois EPA’s regulatory opacity defenses, the defendant was obliged to conduct the required tests within the required timeframe, but the District Court determined the defendant did not do this, following a painstaking review of the Illinois program. In addition, the defendants’ regulatory malfunction defense depended on the defendants’ strict compliance with the regulatory requirements to trigger this defense (such as prompt and consistent reporting), and these requirements were not satisfied. Finally, the defendants argued that if the controlling regulations are so ambiguous, then it did not have “fair notice” of the true meaning of these rules. The District Court, again disagreed, noting that official policy statements by EPA and state authorities provided fair notice to the regulated community.