ELR Citation: 41 ELR 20202
No(s). 10-8032 (10th Cir. May 31, 2011)

The Tenth Circuit upheld the dismissal of an environmental group's CAA citizen suit against a power company alleging that it was attempting to build a coal-fired power plant with an invalid PSD permit. The permit provided that if construction did not commence by May 29, 2005, or if construction was discontinued for a period of 24 months or more, the permit would become invalid. The group asserted that the company failed to comply with both conditions and that the permit was therefore invalid. But in 2005, the Wyoming Environmental Quality Council issued an order finding that the company had commenced construction by May 29, 2005. In 2007, the Council issued another order concluding that the company did not cease construction operations for a 24-month period or more, and a district court affirmed this order in 2009. The district court's 2009 decision therefore precludes the issue of whether the company engaged in continuous construction. And the Council's 2005 Order precludes the issue of whether the company timely commenced construction. Even though the group disagrees with the position the agency took and was not satisfied with the result of the Council’s 2005 Order, the agency acted to ensure that the company commenced construction before May 29, 2005, in accordance with the PSD permit. Moreover, the agency was in privity with the citizens of Wyoming in the 2005 Council proceedings under the doctrine of parens patriae. As such, it was in privity with the group. And the Council resolved disputed issues of fact in an adversarial proceeding.