On October 22, 2019, the U.S. District Court for the Eastern District of Missouri partially stayed its remedy decision in United States v. Ameren Missouri pending Ameren’s appeal. Ameren had requested that the court stay its entire remedy decision pending appeal to the Eighth Circuit. The court declined, but did grant Ameren partial relief. Under the partial stay, Ameren must continue to prepare and submit a PSD permit application to the Missouri Department of Natural Resources (MDNR), including the request for wet flue gas desulfurization as BACT, but is not required to begin construction until the Eighth Circuit appeal is completed.
Ameren filed a motion seeking to stay the court’s September 30, 2019 remedy decision on the grounds that the decision “raises issues of first impression and compliance with the ordered relief would impose unrecoverable costs on Ameren.” The government and environmental plaintiffs responded by arguing that they were suffering ongoing harms and that the costs to Ameren of initiating the relief were not irrecoverable.
The courts stated that under Federal Rule of Civil Procedure 62(c) it determines whether to issue a stay by balancing four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies,” quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987). In applying these factors, the court found that Ameren had demonstrated some issues of “first impression” and that district courts usually found this adequate to demonstrate the first prong, although the court noted that it did not believe these issues allowed Ameren “to violate the Clean Air Act.” The court found that the proposed unrecoverable costs constituted irreparable injury under the law of the circuit, but found that the harm to the plaintiffs of an additional 16,000 tons of SO2 emissions a year, was considerable.
In considering an affidavit submitted by Ameren, the court noted that the estimated costs of compliance in early years were low, increasing over time, and that Ameren estimated it would take MDNR about two years to issue the permit. Based on this observation, the court ruled:
The phased nature of the costs of complying with the injunction provides an opportunity for a partial stay. It is possible to issue an order that stays the phases of the injunctive relief that will require the most cost to Ameren, while also requiring it to proceed in ways that will minimize additional harm to the public.
Accordingly, the court stayed those portions of its order that would require Ameren to undertake actual testing or construction at the Rush Island or Labadie plants, but did not stay the requirement to submit a PSD application for Rush Island within 90 days or to undertake planning for installation of dry sorbent injection at Labadie.
The court's decision to stay those portions of its remedy order requiring Ameren to install wet flue gas desulfurization at Rush Island and dry sorbent injection at Labadie effectively limits the injury to Ameren while also, as a practical matter, likely not delaying the final relief at Rush Island by much as the original order has included permitting time. For Labadie, the relief may be more significant in deferring substantial expense.