Last March, we outlined a legal fight in Texas in which Balch & Bingham was defending one of the “nation’s dirtiest sources of power” owned by Luminate against the EPA. Although we, the CDLU, are not environmentalists, conservationists, or preservationist, we do believe in common sense and respecting the community, and we offered this resolution:
The EPA can immediately resolve the matter by offering to accept necessary permits without any back-penalties while Luminate vows to upgrade the plant to cut pollution by 90 percent in the next year.
Our resolution has gone half-way in that the Fifth Circuit declared that the government could not seek back-penalties but on the other hand could stop the plants from operating.
As Law360 reported late yesterday:
Following the panel’s early October ruling that the U.S. can use injunctive relief to address claims that Luminant Generation Co. and its subsidiary Big Brown Power Co. performed construction work on the power plants without obtaining the required permits, Luminant asked for the full Fifth Circuit to rehear the case.
“If Luminant had complied with the act, it would have a PSD [Prevention of Significant Deterioration] permit that included BACT [Best Available Control Technology] that limited its emissions of air pollutants,” the government said. “But instead there has been and is ongoing pollution uncontrolled by BACT emission limitations.”
Last March, we wrote, that Balch needs to stop defending the indefensible, garnering bad publicity, expanding a bad reputation, and instead offer an approach that is good to the community, sensible to the firm and its clients, and adheres to highest ethical standards.
Why won’t Luminate simply upgrade its plants to code, and seek the required permits before authorizing construction work?
Instead, like Balch & Bingham in the Newsome Conspiracy Case, Luminate appears to be fighting to the death rather than acknowledge that the fight, in the long run, is a losing battle.
We believe the full panel could affirm the government’s right to provide injunctive relief, and Luminate will be forced to resolve the matters at hand with the EPA at an even steeper cost.
Steeper cost—just like the Newsome Conspiracy Case has become.