## Facts

- Georgia Power Company operated the Wansley steam-electric generating plant in Heard County, Georgia.
- Georgia Power planned to construct new power-generation units at Wansley that would increase nitrogen oxide (NOx) emissions.
- Under the Clean Air Act (CAA), Georgia adopted a State Implementation Plan (SIP), approved by the Environmental Protection Agency (EPA), to attain and maintain National Ambient Air Quality Standards (NAAQS).
- Georgia’s SIP required the owner or operator of a new or modified major stationary source of NOx emissions to obtain NOx emissions offsets before operating.
- Offsets consisted of NOx emission reductions from other major stationary sources in the area, and the SIP required offsets to satisfy specified quality criteria (commonly framed as “real, permanent, quantifiable, enforceable, and surplus” reductions).
- Georgia’s Environmental Protection Division (EPD) amended Georgia Power’s Title V permit for Wansley to allow the new construction, conditioning operation on obtaining 457.9 tons of NOx offsets for the 2002 ozone season.
- To supply the offsets, Georgia Power obtained amendments to its permit for its Bowen Plant. During the 2002 ozone season, the Bowen Plant emitted below the amended allowance.
- EPD gave Georgia Power credit based on Bowen’s reduced emissions and treated that credited amount as satisfying the Wansley permit’s offset condition for the 2002 ozone season.
- Sierra Club filed a CAA citizen suit alleging the credited offsets did not meet SIP/CAA requirements and that Georgia Power therefore operated (or was authorized to operate) Wansley’s new emissions without valid offsets.
- Georgia Power moved for summary judgment.

## Issues

1. Whether Georgia’s EPA-approved SIP offset requirements, as incorporated into Wansley’s Title V permit, were enforceable in a CAA citizen-suit action.
2. Whether the NOx reductions credited from the Bowen Plant, based on operating below an amended seasonal allowance, satisfied the SIP’s offset criteria (including that the reductions be surplus and enforceable) for Wansley’s increased emissions.
3. Whether EPD’s decision to credit the Bowen reductions insulated Georgia Power from citizen-suit liability for noncompliance with SIP/permit offset requirements.

## Decision

- The court addressed the dispute at the summary-judgment stage.
- The court rejected Georgia Power’s position that it was entitled to judgment as a matter of law based on EPD’s offset crediting and permit amendments.
- The court treated the SIP offset obligation, as reflected in the Title V permitting action, as a federally enforceable “emission standard or limitation” for purposes of CAA § 304 citizen-suit jurisdiction.
- The court concluded that the offsets Georgia Power relied upon did not satisfy the governing SIP/permit requirements as a matter of law, and Georgia Power therefore could not avoid liability merely because the state permitting authority had credited the reductions.

## Legal Principles

- Under the CAA, SIP provisions approved by EPA are federally enforceable, and SIP-based obligations incorporated into a Title V permit may be enforced through a citizen suit.
- A Title V permit does not convert noncompliant SIP implementation into compliance; state permitting approval does not, by itself, defeat an enforcement claim that a source failed to meet SIP-based permit conditions.
- Offset requirements function as preconditions to authorizing new or increased emissions in covered areas; the reductions used as offsets must meet the SIP’s criteria (including being surplus to what is already required and enforceable for the relevant period).
- When an offset claim depends on reductions below a permitted level at another facility, courts look to whether the claimed reductions are actually surplus and enforceable reductions attributable to binding limits, rather than simply operational variability below an allowance.

## Conclusion

In *Sierra Club v. Georgia Power Co.*, the district court treated Georgia’s SIP offset requirements, as incorporated into Wansley’s Title V permit, as enforceable in a CAA citizen suit and declined to accept Georgia Power’s reliance on state-issued permit amendments and offset credits as a complete defense; the court concluded that the claimed Bowen-based NOx offsets did not satisfy the SIP/permit offset requirements as a matter of law.


Sierra Club v. Georgia Power Co., 365 F. Supp. 2d 1287 (2004)