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Environmental Law — Clean Air Act — statute of limitations

United States Court of Appeals For the Seventh Circuit

Civil

Environmental Law — Clean Air Act — statute of limitations

Operating a new or modified plant, despite failure to obtain a construction permit, is not a new violation of the Clean Air Act.

“Plaintiffs’ contention that a continuing injury from failure to get a preconstruction permit (really, from failure to use BACT) makes this suit timely is unavailing. What these plants emit today is subject to ongoing regulation under rules other than §7475. Today’s emissions cannot be called unlawful just because of acts that occurred more than five years before the suit began. Once the statute of limitations expired, Commonwealth Edison was entitled to proceed as if it possessed all required construction permits. That’s the point of decisions such as United Air Lines, Inc. v. McMann, 434 U.S. 192 (1977), and Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), which hold that enduring consequences of acts that precede the statute of limitations are not independently wrongful.”

Affirmed.

12-1026 & 12-1051 U.S. v. Midwest Generation, LLC

Appeals from the United States District Court for the Northern District of Illinois, Darrah, J., Easterbrook, J.

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