Sierra Club Ordered to Pay Luminant's Attorneys' Fees in Big Brown Suit

By Sky Chadde Thu., Sep. 4 2014 at 3:59 PM

The Sierra Club says it will appeal the judge's ruling.

For years, Luminant's Big Brown coal-fired plant has been described as one of the worst air polluters in the state, sitting at or near the top of the EPA's list of plants spewing nitrogen oxide, which can cause respiratory illnesses. So, it would seem a ripe target for a Clean Air Act lawsuit filed by the Sierra Club.

Taking a shot at Big Brown, however, could wind up costing the environmental group more than $6 million. Turns out, Big Brown may pump out a lot of nasty stuff into the air, but no more than its operating permit allows. U.S. District Judge Walter Smith ruled that the Sierra Club knew that when it filed an unsuccessful Clean Air Act suit against the plant's owner, Luminant, and last week he ordered the Club to pay the power company's legal bills for what he called a "frivolous" suit.

Frivolous is the key word here, and it could factor into decisions to sue polluters in the future.

By using that word, Judge Smith means, essentially, that the lawsuit never should have been brought in the first place. Gabriel Eckstein, an environmental law professor at Texas A&M who was not involved in the case, said its use surprised him.

"Frivolous means you intentionally wanted to waste everybody's time," he says, and in lawsuits such as this one that's been going on since summer 2012, it's uncommon for a court to find that it was groundless.

"This is an unprecedented decision," says Jenna Garland, a spokesperson for the Sierra Club. "The Supreme Court imposed a very high bar on attorney fee orders in the civil rights era, because the fear of being slapped with fees can stunt the ability of citizens to hold violators of federal law -- whether civil rights or environmental -- accountable."

It takes a lot of money to sue big companies and because of that there's a provision in the Clean Air Act that allows for the shifting of the payment of attorneys' fees. It's meant to make environmental litigation against polluters affordable to regular citizens.

"Plaintiffs get their fees (paid) as a matter of course," says Daniel Riesel, a renowned environmental lawyer in New York, "because they're doing God's work. Defendants have a harder row to hoe."

Defendants don't get their attorneys' fees paid unless they can show the lawsuit had no merit in the first place, Riesel says.

In his opinion, Judge Smith wrote that the Sierra Club "was aware that Big Brown's Title V permit exempted it from [particulate matter] deviations during maintenance, startup, or shutdown activities prior to filing suit, which rendered the claim meritless. And at trial, [the club] failed to prove any causation or injury to its lone standing witness or any other individual. Moreover, the one standing witness in the case was not even placed on [the club's] witness list even with the awareness that proving causation and linking the opacity violations at issue to injuries was required in order to prevail."

Could the judge's decision deter people from suing large power companies in the future, since there's the prospect of having to pay the other side's legal fees?

"If [a lawsuit] is in fact off the wall," Riesel says, "people are not going to be chilled."

If a lawsuit is close, he adds, then there might be a chilling effect.

The Sierra Club will appeal the ruling.

Garland declined to speak about the Sierra Club's finances but said, "No fee award will deter the Sierra Club from its core mission of protecting communities from pollution."

In his opinion, Smith wrote that Luminant argued "that [the club] is one of the most well-funded environmental organizations in the U.S. and has the ability to pay the requested fees."

Naturally, the Sierra Club disagreed with the decision.

"Luminant's own reports indicated that its plants were emitting pollution that exceeded Clean Air Act limits," Dr. Al Armendariz, the senior campaign representative of the club's Beyond Coal campaign in Texas, said in a statement. "We presented substantial amounts of evidence at trial showing that this pollution could have been prevented by the company, and brought this case in the interest of safeguarding downwind communities. We are confident the court of appeals will reverse this decision."

Luminant has maintained that it has always been in compliance with environmental laws.

Send your story tips to the author, Sky Chadde.

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primi_timpano topcommenter

If the lawsuit was frivolous why was it not dismissed on a motion for summary judgment?

roo_ster

In any case, we need to institute "loser pays" so to reduce the amount of lawfare and harassment.

dingo

'By using that word, Judge Smith means, essentially, that the lawsuit never should have been brought in the first place.'

Or that the plaintiff continued to litigate after their claims clearly became frivolous, unreasonable, or groundless.

These guys had a big plate of nothing.

http://www.balch.com/files/Uploads/Documents/032814BigBrownFindingsConclusions.pdf

pak152

Bwahahahaha good for the judge

JFPO

"Could the judge's decision deter people from suing large power companies in the future, since there's the prospect of having to pay the other side's legal fees?"

That would appear to be the judge's intent. While the Sierra Club really needs to look at the quality of its legal team, this suit was far from frivolous.

RTGolden1 topcommenter

So, Legally speaking which one trumps; the operating permit or the Clean Air Act? I'd think if the permit allowed pollutant discharge in excess of the Clean Air Act, then any lawsuit should have been filed against the permitting authority, not the power company.

everlastingphelps topcommenter

Anyone who thinks that wasting three days of a Federal Judge's time is a good idea deserves to pay a power company's attorney fees.

You know what the difference is between an Article III judge and God? God doesn't think he's a Federal judge.

everlastingphelps topcommenter

@JFPO They sued them for something that they had a legal permit to do. That is pretty much the definition of frivolous.

everlastingphelps topcommenter

@RTGolden1 The permit was issued under the Clean Air Act.

http://www.epa.gov/oaqps001/permits/

ThePosterFormerlyKnownasPaul topcommenter

@everlastingphelps

You don't tug on Superman's cape
You don't spit into the wind
You don't pull the mask off that old Lone Ranger
And you don't mess around with a Judge

(My apologies to Jim Croce, I just couldn't resist.)

JFPO

Not that simple. "Frivolous" in the legal sense is a deliberate attempt to waste the court's time. The Sierra Club was probably incompetent here, but that's not the point in this case. This judge should have replaced his robe for a NASCAR type jumpsuit so at least he would be upfront about who his corporate sponsors are.

RTGolden1 topcommenter

@everlastingphelps @RTGolden1 Thanks, that's what I was asking about.

pak152

@everlastingphelps @RTGolden1 dont' confuse him facts that was theSierra Clubs problem they ignored the facts

everlastingphelps topcommenter

@JFPO Not quite. FRCP Rule 11 requires that an attorney do due diligence to ensure that there is an actual tort based in good law. Filing a lawsuit incompetently is frivolous, because the attorney either didn't do the due diligence or flatly filed it in bad faith.

They (the attorneys) are specifically required to certify that the lawsuit "is not being presented for any improper purpose, such as to harass" and that "the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law". (my emphasis)

I haven't seen the arguments here, but the judge's statements show that he saw it as them not acknowledging the law (specifically the permit allowing what was done) and giving no good reason for changing the law other than "we don't like it." That's a frivolous reason, under the law.

To be non-frivolous, there has to be an actual disagreement on the facts or the law. Apparently, Sierra Club had no evidence to dispute the facts, and had no law that they could point to that was broken, other than "well we still think it was wrong." That's not an honest disagreement on the law, that's just wasting the court's time. It's what you see out of pro se plaintiffs, not sophisticated multimillion dollar advocacy groups.

everlastingphelps topcommenter

@RTGolden1 @everlastingphelps Right. It's the problem with a frivolous suit -- you keep trying to find meaning in it, until you finally come up with, "OK, so it really was just a waste of my time."