On July 10, 2019, the U.S. Court of Appeals for the Fifth Circuit granted a request for "rehearing en banc" on the panel decision in United States v. Luminant Generation Co., No. 17-10235. We previously reported on the the Luminant panel decision.
The Luminant decision is important for several reasons: First, the Fifth Circuit panel had joined a number of other circuits in holding that the statute of limitations for penalty actions for PSD violations begins on the first day of construction and does continue through each day of operation of the allegedly illegally constructed source. Second, the Fifth Circuit panel had held that the collateral remedies doctrine barred Sierra Club's ability to pursue injunctive relief. Third, the Fifth Circuit panel held that the collateral remedies doctrine did not bar the United States' ability to seek injunctive relief in its sovereign capacity. Accordingly, the panel had remanded the case to the district court to consider whether injunctive relief should be imposed.
The Fifth Circuit en banc order noted that one member of the court had requested a poll based on the request for en banc consideration and that a majority of the court had agreed to hear the case en banc. This has the effect of vacating the panel decision. Appellants' briefs are due on August 9, 2019 and Appellees' briefs are due on September 9, 2019. The rehearing is scheduled for the week of September 23, 2019.
The Fifth Circuit's decision to grant en banc review in Luminant raises the stakes. An en banc decision will carry substantial weight in district and other circuit courts in considering how to respond to statute of limitation claims. The Fifth Circuit en banc review will thus offer the best opportunity for parties on all sides of the statute of limitations debate to seek to influence the future direction of litigation.