Conservation Groups Respond to Motion to Dismiss in UNC Clean Air Act Suit

Last week, the Center for Biological Diversity (Center) and the Sierra Club responded to a motion to dismiss lodged by defendant, the University of North Carolina Chapel Hill (UNC), in a case concerning alleged Clean Air Act (CAA) violations from two UNC-owned and operated coal-fired combustion broilers. The litigation, brought under the CAA’s citizen-suit provision, stemmed from the Center’s investigations of UNC’s Title V compliance.

According to the plaintiffs’ opposition brief, the Center undertook “two years of painstaking factual investigation,” making 25 requests for compliance and permit records regarding UNC’s Title V facilities with UNC itself and state and federal oversight authorities. The plaintiffs recounted that they were largely unsuccessful “in obtaining a panoply of requested, mandatory compliance records.”

After efforts to track down the records fizzled, the Center “concluded that the requested records were either never generated or never submitted to regulatory authorities.” In turn, the plaintiffs state that their claims are based upon the records they did receive, and “reasonable inferences” drawn from UNC’s failure to produce others. The conversation group plaintiffs seek injunctive relief and assessment of civil penalties for purported one-off and repeated violations of Title V’s pollution emissions limits, equipment inspection requirements, and record keeping mandates.

The plaintiffs contend that each of their ten claims are sufficiently pled and made in good faith, which they aver is enough to warrant denial of UNC’s motion. They argue that, “[w]hile styled as a motion to dismiss, Defendant in essence is asking this Court to render a decision on the merits before the parties have completed discovery.”

Relatedly, they claim that some of the defendant’s arguments are premature, and will only be ripe for disposition once they unearth more information through fact discovery. The plaintiffs’ opposition brief also points to repeated post-complaint violations admitted by UNC in its Quarterly Emissions Report for the first quarter of 2020.

This “revelation,” the plaintiffs contend, “demonstrates why all of [their] allegations of repeated violations should survive the motion to dismiss stage…” In turn, they request that the North Carolina Middle District Court deny the motion and allow the plaintiffs “to complete discovery before issuing a ruling on the merits.”

The plaintiffs are represented by lawyers from the Center for Biological Diversity and Sierra Club. The defendant is represented by Moore & Van Allen.