Appeals court sends Alabama Power air case back to lower court

The U.S. Eleventh Circuit Court of Appeals, with a bit of levity thrown in, ruled Sept. 19 for the federal government in a clean air case involving the Alabama Power subsidiary of Southern Co. (NYSE: SO).

“This case, brought by the United States against Alabama Power Company for alleged violations of the Clean Air Act, has lasted for over a decade, lending some literal support to Justice Holmes’ quip that ‘[l]awyers spend their professional careers shoveling smoke,’” said the ruling by a three-judge appeals panel.

The government’s central allegation is that Alabama Power made major modifications at three of its coal-fired power plants – Gorgas, Greene County and Barry – without obtaining a permit or installing modern pollution control devices. In support of its case, the government sought to introduce the expert testimony of Robert Koppe, a power plant reliability engineer, and Dr. Ranajit Sahu, an environmental permitting engineer. The testimony of these two experts, according to the government, would show that Alabama Power should have expected the modifications to significantly increase pollutant emissions at the plants, in violation of the Clean Air Act.

The district court excluded the testimony of Koppe and Sahu, agreeing with Alabama Power that their methodology relied on incorrect and unrealistic assumptions about the operation of Alabama Power’s generating units. The district court also struck, as an untimely new expert opinion, additional statements and calculations made by Sahu in his supplemental declaration. Because the government indicated that it could not proceed without the expert testimony excluded in a variation of this case called Alabama Power I, the district court entered summary judgment in favor of Alabama Power.

The government and the Alabama Environmental Council then appealed. The appeals court panel on Sept. 19 affirmed without further discussion the district court’s ruling in Alabama Power II. “That ruling, in our view, was not an abuse of discretion,” the opinion said. “We reverse, however, the district court’s wholesale exclusion of the expert testimony of Mr. Koppe and Dr. Sahu in Alabama Power I, vacate the judgment in favor of Alabama Power, and remand for further proceedings. The Koppe-Sahu model, as utilized here, is sufficiently reliable to establish a relationship between potential generation of electricity and expected pollutant emissions at Alabama Power’s modified plants.”

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.