On Tuesday what was perhaps the largest environmental case in American history came to an apparent conclusion with the entry of a consent decree in the United States District Court in Columbus, Ohio. The case pitted Porter Wright Morris & Arthur (PWMA) client American Electric Power (AEP) against (1) the United States, (2) eight states (New York, Connecticut, New Jersey, Vermont, New Hampshire, Maryland, Rhode Island and Massachusetts),
and (3) no less than 14 citizen environmental groups (Ohio Citizen Action, Citizens Action Coalition of Indiana, Hoosier Environmental Council, Valley Watch, Ohio Valley Environmental Coalition, West Virginia Environmental Council, Clean Air Council, Izaak Walton League of America, U.S. Public Interest Research Group, National Wildlife Federation, Indiana Wildlife Federation, League of Ohio Sportsmen, Sierra Club and Natural Resources Defense Council).
As part of the consent decree, AEP admitted no violation of law, and all claims against AEP were released. You can see AEP’s press release regarding the consent decree here.
As typical with complex environmental cases, the federal court bifurcated the trial. The liability phase was held in July 2005, but a decision had still not been issued by the Court by the time remedy phase of the trial was scheduled to begin this past Tuesday.
U.S. EPA and the Department of Justice held a press conference Tuesday morning referring to the resolution as "the largest environmental settlement in history," although they appear to be including in their calculations billions worth of projects already undertaken by AEP. The settlement requires AEP to achieve significant reductions in emissions of sulfur dioxide and nitrogen oxide over the next twelve years at sixteen power plants in Ohio, Indiana, Virginia, West Virginia, and Kentucky. This reduction in emissions reflects a multibillion dollar investment by AEP. In addition, AEP will provide $36 million for environmental projects coordinated with the federal government (from an agreed-to list in the settlement), $24 million to the states that were parties to the agreement for environmental mitigation, and an additional $15 million in compensation. In return, the United States agreed to a forward-looking covenant releasing AEP from future (as well as past) alleged NSR violations.
For those who are interested, the proposed consent decree is accessible from the Court’s website.