United States v. DTE Energy et al

MOTION Requesting Status Conference

E.D. Mich.May 24, 2013

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN UNITED STATES OF AMERICA ) ) Plaintiff, ) Civil Action No. 2:10-cv-13101-BAF-RSW and ) ) Judge Bernard A. Friedman NATURAL RESOURCES DEFENSE ) COUNCIL, and SIERRA CLUB ) Magistrate Judge R. Steven Whalen ) Plaintiff-Intervenors ) v. ) ) DTE ENERGY COMPANY, and ) DETROIT EDISON COMPANY ) ) Defendants. ) ) PLAINTIFF UNITED STATES’ MOTION FOR STATUS CONFERENCE AND STAY OF SUMMARY JUDGMENT BRIEFING Plaintiff United States hereby requests a status conference to discuss the orderly inclusion of potential additional claims into this case, as well as a timeline for future briefing in this case, should the Court deem any is appropriate. In support of this request, Plaintiff states: 1. The Sixth Circuit Court of Appeals recently reversed this Court’s Order on Summary Judgment and remanded the case for further proceedings. ECF No. 164. 2. Heretofore, this case has focused on Clean Air Act (CAA) violations that occurred at Defendants’ (DTE’s) Monroe Unit 2 electric generating facility. See, e.g., ECF Nos. 1, 8. However, as DTE is well aware, EPA has issued a Notice of Violation to DTE alleging similar violations at several of its other generating units. See Preliminary Injunction Hearing Transcript at 141–43 (Jan. 19, 2011) (excerpted at Ex. 1). While the United States agreed to 2:10-cv-13101-BAF-RSW Doc # 168 Filed 05/24/13 Pg 1 of 4 Pg ID 6807 keep the focus on Monroe 2 for the purposes of accelerating trial and expediting relief,1 with the return of the case to the district court, the United States is now considering amending its complaint to add claims of CAA violations at several other of DTE’s facilities. 3. Additionally, DTE has recently sought leave to file another motion for summary judgment that professes to address the remaining issues in this case in light of the Sixth Circuit’s decision, see ECF Nos. 165 & 166, but the Company never mentions the already-briefed and -pending motion that relates to precisely the issues it raises. Compare, e.g., ECF No. 166 at 17 (asserting without legal argument that DTE followed EPA’s projection regulations) with ECF Nos. 117, 127, & 155 (pending summary judgment briefing regarding, inter alia, the operation of EPA’s emissions projection regulations). 4. In the interest of efficiency and judicial economy, the United States respectfully requests a status conference with the Court and the Parties to discuss whether—and to what extent—additional briefing on these issues is appropriate, and how that briefing should be timed with regard to the amendment of the complaint to incorporate additional claims. 5. Pursuant to Local Rule 7.1(a), counsel for the United States conferred with DTE’s counsel to explain the nature of this Motion and its basis, and to request concurrence in the relief requested in this Motion; such concurrence was not obtained. Respectfully Submitted, Dated: May 24, 2013 IGNACIA S. MORENO Assistant Attorney General Environment & Natural Resources Division s/ Elias L. Quinn JAMES A. LOFTON JUSTIN A. SAVAGE 1 PI Hearing Transcript at 142 ll. 12–14 (Mr. Benson for the United States: “[F]or the expedited trial we’re talking about here, it would make sense to focus on Monroe 2”). 2:10-cv-13101-BAF-RSW Doc # 168 Filed 05/24/13 Pg 2 of 4 Pg ID 6808 OF COUNSEL: SABRINA ARGENTIERI MARK PALERMO SUSAN PROUT Associate Regional Counsel U.S. EPA Region 5 Chicago, IL 77 W. Jackson Blvd. APPLE CHAPMAN Associate Director Air Enforcement Division U.S. EPA 1200 Pennsylvania Ave. NW Washington D.C. 20460 JAMES W. BEERS, JR. THOMAS A. BENSON (MA Bar # 660308) KRISTIN M. FURRIE ELIAS L. QUINN (CO Bar # 42159) Environmental Enforcement Section U.S. Department of Justice P.O. Box 7611 Washington, D.C. 20044-7611 (202) 514-5261 thomas.benson@usdoj.gov BARBARA McQUADE United States Attorney Eastern District of Michigan ELLEN CHRISTENSEN Assistant United States Attorney 211 W. Fort St., Suite 2001 Detroit, MI 48226 2:10-cv-13101-BAF-RSW Doc # 168 Filed 05/24/13 Pg 3 of 4 Pg ID 6809 CERTIFICATE OF SERVICE I hereby certify that on May 24, 2013, the foregoing motion and supporting materials were served via ECF on counsel of record. s/ Elias L. Quinn Counsel for the United States 2:10-cv-13101-BAF-RSW Doc # 168 Filed 05/24/13 Pg 4 of 4 Pg ID 6810