In a somewhat surprising decision, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit held on March 2, 2007, that the Clean Air Act’s five-year statute of limitations (28 U.S.C. § 2462) limited but did not bar an action for civil penalties for violating the provisions of the Tennessee State Implementation Plan (“Tennessee SIP”). This would apply, barring commencement of construction or modification of a source of air pollution without a permit, despite the fact that actual commencement of construction occurred more than five years from the date the action was brought. In National Parks Conservation Association, et al. v. Tennessee Valley Authority, No. 05-6329, the construction at issue took place in 1988 and the action for civil penalties was initiated in 2001, 13 years after the commencement of construction. The issue presented to the court by the parties was whether the plaintiffs, three citizen groups, had alleged a continuing violation which would allow them to seek the imposition of penalties for actions taken outside of the five-year limitation period. Citing the Sixth Circuit’s general reluctance to apply the continuing violation doctrine outside the context of discrimination claims under Title VII of the Civil Rights Act, the court concluded that it need not decide whether the continuing violation doctrine applied in environmental suits because it believed the action of defendants presented a series of discrete violations, rather than a single violation that may or may not have been continuing in nature. As a result, a majority of the panel concluded that plaintiffs could maintain their action but could only reach back for civil penalties for the five-year period immediately prior to the filing of the complaint, and not to the date construction was commenced. The majority of the court rejected the argument advanced by the dissent that commencement of construction without obtaining a pre-construction permit in 1988 was the only violation, and that each day thereafter represented a new harm, not a new violation giving rise to a new cause of action.

In her majority opinion, Judge Moore relied heavily on a provision in the Tennessee SIP that provides that where a source is constructed or modified without first obtaining a pre-construction permit, a construction permit may nevertheless subsequently be issued to the source to impose applicable emission limits. From this provision, she concluded that defendant’s obligation to obtain a construction permit was on-going even postconstruction, and a failure to obtain a permit post-construction was a repetitive discrete violation that constituted independently actionable individual causes of action.

The court’s decision to reject the argument that the failure to obtain a pre-construction permit was a continuing violation doctrine leaves environmental lawyers with four opinions as guidance in this area. The other three are District Court opinions: United States v. Duke Energy Corp., 278 F.Supp. 2d 619 (M.D.N.C. 2003); New York v. Mohawk Power Corp., 263 F.Supp. 2d 650, 660-63 (W.D.N.Y. 2003); United States v. Westvaco Corp., 144 F.Supp. 2d 439, 442-44 (D.Md. 2001).