Trump Administration Seeks to Block Settlement Between Sierra Club and Michigan Utility

Source: By Timothy Puko, Wall Street Journal • Posted: Sunday, July 12, 2020

Motion asks court to reject deal that would require DTE Energy to close three coal-fired power plants and pay $2 million for local environmental improvements

The Trenton Channel Power Plant, a coal-fired electricity plant operated by DTE Energy, near Detroit in 2017. Photo: rebecca cook/Reuters

The Trump administration is asking a federal judge to reject a settlement between the Sierra Club and a Michigan utility over alleged clean-air violations, arguing that the deal improperly goes beyond what the federal government has approved.

The motion, filed late Wednesday, asks a U.S. district court in Michigan to reject a settlement that would require Detroit-based utility DTE Energy Co. to close three coal-fired power plants and pay $2 million for local environmental improvements.

Those terms would be in addition to a $7.3 million settlement with the federal government and would have ended a decade-long case over alleged Clean Air Act violations at DTE plants.

The Sierra Club has been a co-plaintiff alongside the U.S. government, but the Justice Department says it shouldn’t have the power to push for settlement terms beyond what the government approves. Justice Department lawyers say they are trying to make this a test case, leading to a national precedent limiting the ability of citizen groups to press for stiffer punishments.

Shannon Fisk, an attorney for the Earthjustice environmental group who represented the Sierra Club in the case, said the government’s action jeopardizes a settlement that took more than two years to negotiate and would benefit Black and poor communities that suffered from the coal-burning plants in their communities.

“It’s unconscionable,” Mr. Fisk said. “This should be an easy win for everyone involved.”

A DTE spokesman said the company had no comment on the legal action, but that it remains committed to fulfilling the terms of its agreements with both the government and the Sierra Club.

DTE has been trying to speed up the closing of several coal-burning plants to cut its emissions of the greenhouse gasses that cause climate change. The Sierra Club, in announcing the settlement in May, said it would be most helpful to largely Black and poor communities near the plants that have taken the brunt of their pollution.

President Trump supports coal power and has opposed closing coal mines. His administration has worked to limit the legal influence of environmental groups and how bedrock environmental laws like the Clean Air Act apply to climate change, saying both hinder economic development.

“The United States is concerned that requiring DTE to close many of its units elevates outcomes sought by a special interest group over sound environmental Policy,” the Justice Department said in the motion on behalf of the Environmental Protection Agency. “While closure is sometimes appropriate, it is the exception, not the rule.”

The motion argues that the Sierra Club deal goes beyond a $100,000 cap on such settlements, and violates law that says penalties should be paid to the U.S. Treasury. It goes on to cite concerns conservative Supreme Court justices have raised in opinions since 2000 about whether it is constitutional to give private citizen groups this powerful a role in enforcement.

“Serious constitutional concerns are raised when private groups try to go beyond their secondary role in a case already forcefully litigated by the federal government,” Jeffrey Clark, assistant attorney general of the Environment and Natural Resources division at the Justice Department, said to The Wall Street Journal.

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