Earlier this month, the 5th Circuit Court of Appeals granted something of a reprieve to EPA’s New Source Review enforcement initiative. The Court first confirmed what everyone other than EPA and DOJ already knew – that failure to get a pre-construction permit is a one-time offense, so that penalty claims for alleged violations more than five years prior to filing are barred by the statute of limitations. However, the Court then surprised most observers by holding that expiration of penalty claims did not doom the government’s claim for injunctive relief. Specifically, the Court ruled that the “concurrent remedies doctrine,” which bars equitable remedies when no legal remedy is available, cannot be applied to a sovereign. I’m not going to provide an exegesis of the doctrine, which carries more than a whiff of Jarndyce v. Jarndyce. I’ll settle for three points. First, it may not be a legal doctrine, but I’d…
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