On September 3, 2013, the United States filed a petition for en banc and panel rehearing of the Seventh Circuit’s July 8, 2013 opinion in United States v. Midwest Generation, LLC.  Resurrecting its prior arguments, the government asserts that the panel’s interpretation of the Clean Air Act’s Prevention of Significant Deterioration (PSD) requirements was “flawed” and that a violation of the PSD statute is continuing in nature.  The government also posits that the Seventh Circuit’s opinion is inconsistent with the Sixth Circuit’s holding in National Parks Conservation Ass’n v. TVA, 480 F.3d 410 (6th Cir. 2007).  While acknowledging that that the Third, Eighth and Eleventh Circuits reached conclusions in line with the Seventh Circuit, the government argues in its petition that those decisions “all suffer from the same error: they fail to realize that the [Best Available Control Technology] obligation is distinct from the permit obligation.”  Petition at p. 10.

In addition to relying on the Sixth Circuit’s opinion in TVA, the government also relies on the Seventh Circuit’s prior holding in Citizens Against Ruining the Environment v. EPA, 535 F.3d 670 (7th Cir. 2008) (“CARE”) and the Fifth Circuit’s holding in United States v. Marine Shale Processors, 81 F.3d 1329 (5th Cir. 1996) in support of its petition.  According to the government, in CARE the Seventh Circuit explained that PSD permits govern post-modification emissions.  However, this statement is dicta and the CARE opinion does not indicate that the obligation is ongoing or that emissions limits exist without a preconstruction permit.  While in Marine Shale Processors the Fifth Circuit found that the government could collect penalties for the five years preceding the lawsuit, the court was evaluating preconstruction permit obligations for an area source, rather than a major source.  The Fifth Circuit provided minimal statute of limitations analysis and it was decided in 1996.  Since then, multiple circuit courts have issued well-reasoned decisions finding the failure to obtain a preconstruction permit to be a one-time violation.

Responding to the Seventh Circuit’s statement that a source could be in compliance with PSD by installing pollution control equipment during construction, then rip it out or deactivate the controls after construction, the government asserts that the Seventh Circuit has turned the PSD program into a program requiring construction permits and the construction of, but not operation of, pollution control equipment.  See Petition at p. 13.  Additionally, the government assert that the Seventh Circuit’s opinion does not consider “either the statutory definitions or the statutory purpose” of the PSD provisions.  Petition at p. 14.  Relying heavily on the asserted purpose of the statute, the government concludes its petition by stating that the “Clean Air Act is a pollution control statute not a building code, after all.”  Petition at p. 15.

En banc rehearing is granted if such consideration is necessary to secure or maintain uniformity of the court’s decisions or the proceeding involves a question of exceptional importance.  Fed. R. App. P. 35(a).  While the government has attempted to highlight both, they have not raised any arguments not already presented in their original briefs.