DJL Farm LLC v. EPA, No. 15-2247 (7th Cir. 2016)

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In the United States Court of Appeals For the Seventh Circuit ____________________ Nos. 15 2245, 15 2246, 15 2247 & 15 2248 DJL FARM LLC, et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents. ____________________ Petitions for Review of an Order of the Environmental Protection Agency ____________________ SUBMITTED FEBRUARY 5, 2016 — DECIDED FEBRUARY 23, 2016 ____________________ Before BAUER, FLAUM, and SYKES, Circuit Judges. PER CURIAM. Petitioners DJL Farm LLC, Andrew H. Lein berger Family Trust, and William and Sharon Critchelow are landowners who challenge permits authorizing FutureGen Industrial Alliance to construct and operate wells to store carbon dioxide near their land. Shortly before argument, FutureGen determined that it did not have enough money to develop the wells authorized by the permits and, with the EPA, moved to dismiss the con 2 Nos. 15-2245, 15-2246, 15-2247 & 15-2248 solidated petitions as moot. After hearing from both sides, we conclude that because the four permits expired on Feb ruary 2, 2016, they are no longer in force and petitioners lack any concrete interest in challenging them. We therefore dis miss as moot the petitions for review. I. Background FutureGen Industrial Alliance was created to research and develop near zero emissions coal technology and sought to use carbon capture and storage to develop the world’s first near zero emissions power plant in Morgan County, Il linois. Geologic sequestration is part of the process known as carbon capture and storage, and involves the injection of carbon dioxide into deep subsurface rock formations for storage. This long term underground storage is intended to reduce carbon dioxide emissions to the atmosphere and mit igate climate change. The Safe Drinking Water Act requires the EPA to regulate underground injection of hazardous material under permits that will ensure protection of underground sources of drink ing water. The EPA has determined that pressurized carbon dioxide is a hazardous material. Under EPA regulations fi nalized in 2010, all injection activities are prohibited until the owner or operator is authorized by permit. See 40 C.F.R. § 144.31. In March 2013 FutureGen applied for permits to con struct four Class VI underground injection control wells and inject approximately 22 million metric tons of carbon dioxide into the wells over a 20 year period. After requesting addi tional information, the EPA issued draft permits in March Nos. 15-2245, 15-2246, 15-2247 & 15-2248 3 2014. Petitioners submitted written comments challenging the permits during the public comment period. In August 2014 the EPA issued four permits to FutureGen authorizing it to construct and operate underground injec tion control wells. They were the first to be issued under the new regulations governing injection control wells. Petitioners filed timely petitions for review with the En vironmental Appeals Board, which the Board denied. The EPA issued the final permits on May 7, 2015. Petitioners then sought review in this court. In January 2015, the United States Department of Energy suspended funding for the FutureGen project authorized by the challenged permits. The permits were set to expire on May 7, 2016, unless construction of the wells had begun or an extension was allowed. After exhausting avenues to rein state that funding, FutureGen determined that it will not proceed with development of the project. On February 2, 2016, FutureGen submitted a request to the EPA to advance the expiration of the permits. Before receiving confirmation that the permits were ex pired, the EPA and FutureGen moved to vacate oral argu ment and dismiss the consolidated petitions for review as moot because the permits would no longer be in effect. Peti tioners opposed the motion because it was not yet clear that the permits were expired or whether the permits could be transferred to another developer. The EPA and FutureGen submitted a letter from the EPA confirming that the permits are expired as of February 2, 2016, and filed a reply further supporting their motion to dismiss. We issued a short order 4 Nos. 15-2245, 15-2246, 15-2247 & 15-2248 vacating oral argument and taking the motions papers under advisement. II. Discussion Federal courts lack subject matter jurisdiction when a case becomes moot. Pakovich v. Verizon LTD Plan, 653 F.3d 488, 492 (7th Cir. 2011). Accordingly, a case must be dis missed “if an event occurs while a case is pending … that makes it impossible for the court to grant any effectual relief whatever to a prevailing party.” Id. (quoting Cornucopia Inst. v. U.S. Dep t of Agric., 560 F.3d 673, 676 (7th Cir. 2009)). The EPA and FutureGen submit that because the challenged permits are expired, there is no meaningful relief we could award to petitioners. Petitioners respond that they also challenge the Envi ronmental Review Board’s order rejecting their challenges and ask us to vacate both the permits and the Board’s order. Petitioners also argue that their petitions are not moot be cause it is not clear that the permits cannot be transferred, sold, reissued, or used as a basis, along with the Board’s opinion, for issuing new permits for the same project in the same location. Petitioners liken this situation to voluntary cessation of a challenged practice, which “does not deprive a federal court of its power to determine the legality of the practice.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)). The Supreme Court imposes a stringent standard for determining whether a case has been mooted by a party’s voluntary conduct: “A case might be come moot if subsequent events made it absolutely clear that Nos. 15-2245, 15-2246, 15-2247 & 15-2248 5 the allegedly wrongful behavior could not reasonably be ex pected to recur.” Id. (citing United States v. Concentrated Phos phate Exp. Ass’n, 393 U.S. 199, 203 (1968)). We conclude that FutureGen and the EPA have met this burden. They first explain that the Environmental Review Board’s order in this case is not a separately reviewable ac tion, and instead is a prerequisite to seeking judicial review of the permits. See 40 C.F.R. § 124.19(l)(2). They also explain that an expired permit cannot be transferred, reissued, or used as a basis for issuing new permits in the same location. Only active permits can be transferred under EPA regula tions, see id. § 144.38(a), and a permit can be reissued only after an active permit is revoked, see id. § 144.39(b), which is inapplicable to an already expired permit. It is possible that the expired permits could be used as a reference for a new entity seeking a permit in the same loca tion. But the new entity will have to go through the same regulatory process and may remedy the problems that peti tioners identified in the current process. Even if FutureGen decided in the future to pursue new permits in the same lo cation, it would have to repeat the regulatory process. Petitioners challenge permits that are now expired. No entity can construct or operate injection control wells near their land without submitting a new application for a permit and completing the regulatory process. Because the chal lenged permits are no longer in effect and cannot be reissued absent new regulatory proceedings, there is no relief that we can grant to petitioners. Accordingly, the petitions are DISMISSED as moot.

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