                                                                          FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                    August 10, 2012
                                        PUBLISH                   Elisabeth A. Shumaker
                                                                      Clerk of Court
                     UNITED STATES COURT OF APPEALS

                                     TENTH CIRCUIT



 WILDEARTH GUARDIANS, a New
 Mexico non-profit corporation,

              Plaintiff-Appellant,
       v.                                                   No. 11-1400
 PUBLIC SERVICE COMPANY OF
 COLORADO, doing business as XCEL
 ENERGY,

              Defendant-Appellee.


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLORADO
                    (D.C. NO. 1:09-CV-01576-WDM-KLM)


Maclain Joyce, Student Attorney (Professor Kevin Lynch, Supervisor, and Professor
Michael Ray Harris with him on the briefs, and Casey Giltner, Student Attorney, with
him on the opening brief), Environmental Law Clinic, University of Denver Sturm
College of Law, Denver, Colorado, for Appellant.

William M. Bumpers, Baker Botts L.L.P., Washington, District of Columbia (A. Kent
Mayo and Michael Heister, Baker Botts, L.L.P., Washington, District of Columbia, and
Colin C. Deihl, Ann E. Prouty, and Linda L. Rockwood, Faegre Baker Daniels LLP,
Denver, Colorado, with him on the brief), for Appellee.


Before O’BRIEN, TYMKOVICH, and MATHESON, Circuit Judges.
TYMKOVICH, Circuit Judge.

       The question in this case is whether allegations that Public Service Company of

Colorado (PSCo) violated the Clean Air Act have become moot. WildEarth Guardians

claims that PSCo’s construction of a new coal-fired power plant in Pueblo, Colorado

violated the Act because PSCo failed to obtain a valid construction permit. WildEarth

seeks civil penalties to remedy the violation.

       Although the project initially complied with all applicable federal and state laws

when construction commenced in 2005, the regulatory landscape changed in 2008. A

decision of the D.C. Circuit required regulators to impose additional Clean Air Act

requirements upon new power plant construction. After the decision, PSCo worked with

the relevant agencies to come into compliance with the modified regulatory regime while

construction of the plant continued.

       WildEarth sued PSCo pursuant to the Act’s citizen-suit provisions, seeking civil

penalties and an injunction to halt construction until PSCo complied with the Act. While

this litigation was pending, PSCo finished constructing the plant and came into

compliance with the new regulatory regime. The district court dismissed the suit,

reasoning that to find a Clean Air violation under the circumstances would be to give

unwarranted retroactive effect to the decision of the D.C. Circuit.

       PSCo argues that we lack jurisdiction to hear this appeal. It contends that since it

is now in compliance with the Act, a court ruling could not redress any injuries WildEarth

has suffered as a result of PSCo’s alleged violation. PSCo also argues WildEarth in effect

                                                 2
has received the injunctive relief it requested because PSCo is now in compliance.

       Although we find redressability to be an inappropriate basis for dismissal here,

WildEarth’s claims nonetheless should be dismissed under the related jurisdictional

doctrine of constitutional mootness. In most Clean Air citizen suits, mootness is difficult

to establish because the plaintiff’s interest in deterring the defendant from future

violations is sufficient to sustain a constitutional case or controversy between the parties.

Under the unusual circumstances of this case, however, we find PSCo’s alleged Clean Air

violations could not reasonably be expected to recur, and thus no deterrent effect could be

achieved.

       Accordingly, we find this appeal moot and DISMISS.

                   I. Statutory and Regulatory Background

       A brief overview of the applicable statutory and regulatory framework will help to

explain WildEarth’s claims. It will also show how the applicable regulations in this case

shifted over the years during which PSCo conceived and constructed the plant.

       The regulation of power plant mercury emissions under the Clean Air Act has a

long and complex history. In 1970, Congress added section 112 to the Act, which

required the Environmental Protection Agency (EPA) to develop a list of Hazardous Air

Pollutants that should be regulated because they could cause illness, and to promulgate

emissions standards for them. Pub. L. No. 91-604 § 112(a)(1). In 1990, frustrated by the

EPA’s slow progress, Congress amended section 112 to require the EPA to regulate more

than one hundred specific pollutants, including mercury. Congress specified that

                                              3
pollutant standards must “require the maximum degree of reduction in emissions . . . that

the [EPA] Administrator, taking into consideration the cost of achieving such emission

reduction . . . determines is achievable.” § 112(d)(2). New sources of pollutants falling

within a list of regulated source categories must utilize “the maximum achievable control

technology emission limitation” (MACT), and for pollutants for which standards have not

yet been established, the permitting authority determines MACT compliance “on a case-

by-case basis.” § 112(g)(2)(A).1 Congress also restricted the EPA’s ability to remove

source categories from the list of regulated sources, requiring it first to determine that

“emissions from no source in the category . . . exceed a level which is adequate to protect

public health with an ample margin of safety and no adverse environmental effect will

result from emissions from any source.” § 112(c)(9).

       The 1990 amendment contained special rules for new electric utility steam

generating units, such as the coal-fired power plant at issue here. Congress did not

require the EPA to immediately regulate coal plants; instead, it required the EPA to

“perform a study of the hazards to public health reasonably anticipated to occur as a result

of emissions by [coal plants] of pollutants.” § 112(n)(1)(A). The Administrator would be

required to regulate coal plant emissions only if he found “such regulation is appropriate

and necessary after considering the results of the study.” Id.

       The required emissions study, completed in 1998, found “a plausible link between

       1
         Because the Act employs a “cooperative federalism” approach, the relevant
permitting authority in this case is the Colorado Department of Public Health and
Environment.

                                              4
anthropogenic releases of mercury from industrial and combustion sources in the United

States and methylmercury in fish” and that “mercury emissions from [coal plants] may

add to the existing environmental burden.” KATHRYN MAHAFFEY ET AL., U.S. EPA,

EPA-452/R-97-009, MERCURY STUDY REPORT TO CONG., Vol. VII, 45 (1997), available

at http://www.epa.gov/ttn/oarpg/t3/reports/volume7.pdf.2 In 2000, the Administrator, in

light of the 1998 study, found it was “appropriate and necessary” to regulate mercury

emissions from coal plants, and formally added coal plants to the list of source categories.

Regulatory Finding on the Emissions of Hazardous Air Pollutants From Electric Utility

Steam Generating Units, 65 Fed. Reg. 79,825, 79,827 (Dec. 20, 2000).

       The EPA considered two main alternatives for regulating coal plant mercury

emissions. The first alternative was through issuance of MACT standards under section

112. The second was the creation of a mercury cap-and-trade system. This second option

would involve removing coal plants from the list of source categories under section 112

and regulating them under a different section of the Act. In 2005, in a decision referred to

as the “Delisting Rule,” the EPA chose the cap-and-trade option.

       The Delisting Rule was controversial and was challenged by the state of New

Jersey in federal court. In 2008, a panel of the D.C. Circuit struck down the Delisting

Rule. See New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008). The court found that the

EPA, in delisting coal plants, had not followed the delisting procedures required by

       2
         Although this report is dated December 1997, EPA’s official website indicates
the report was finalized on January 9, 1998. See U.S. EPA (July 23, 2012),
http://www.epa.gov/ttn/oarpg/t3rc.html.

                                             5
section 112(c)(9) of the Act. This decision restored the regulation of coal plant mercury

emissions under section 112’s “case-by-case determination” process.

       Finally, in 2012, the EPA formally issued MACT standards for coal plant mercury

emissions. See National Emission Standards for Hazardous Air Pollutants From Coal-

and Oil-Fired Electric Utility Steam Generating Units and Standards of Performance for

Fossil-Fuel-Fired Electric Utility, Industrial-Commercial-Institutional, and Small

Industrial-Commercial-Institutional Steam Generating Units, 77 Fed. Reg. 9304 (Feb. 16,

2012). The new standards, known as the Mercury and Air Toxics Standards, specified the

control technologies required for new coal plants, thereby eliminating the need for case-

by-case MACT determinations.

       Although federal and state authorities have primary enforcement responsibility, the

Clean Air Act also includes a private enforcement mechanism. Section 304 authorizes

“any person” to “commence a civil action on his own behalf . . . against any person who

proposes to construct or constructs any new or modified major emitting facility without a

permit.” CAA § 304(a). Courts may award both injunctive relief and civil penalties. See

id. The penalties, however, are payable to the United States Treasury rather than

plaintiffs, who can only recover their litigation costs. See §§ 304(g)(1), 304(d). The

court, in its discretion, may designate a portion of the penalties to “be used in beneficial

mitigation projects which are consistent with this chapter and enhance the public health or

the environment.” § 304(g)(2).




                                              6
                        II. Factual and Procedural History

       In the midst of this evolving regulatory environment, PSCo sought to build a new

coal plant, known as the Comanche 3 Unit, at the Comanche Generating Station in

Pueblo, Colorado. From the project’s conception, PSCo worked with several major

environmental and community groups to implement a plan that would enable the

Comanche 3 Unit to meet or exceed Clean Air requirements. In December 2004, PSCo

reached a formal settlement with these groups, in which PSCo agreed to install “state-of-

the-art pollution controls,” Supp. App. at 30, including mercury controls equal to or

exceeding the MACT standards proposed by the EPA prior to the Delisting Rule.3 PSCo

also agreed to install new mercury controls and other pollution controls on two older coal

plants at the Comanche Generating Station.

       PSCo’s revised permit application, submitted in January 2005, incorporated the

settlement and requested a case-by-case MACT determination. But, in March 2005, the

EPA issued the Delisting Rule, making a MACT determination unnecessary. As a result,

the final construction permit, issued in July 2005, did not contain a MACT determination.

PSCo began construction in October 2005, and planned to complete the Comanche 3 Unit

by 2009. Notwithstanding the Delisting Rule, PSCo honored its settlement with the

environmental groups and constructed the plant with the agreed-upon pollution controls.




       3
           WildEarth was not a party to the settlement agreement.

                                             -7-
       The Comanche 3 Unit was still under construction in February 2008, when the

D.C. Circuit struck down the Delisting Rule.4 In January 2009, the EPA issued a

memorandum to its regional administrators requesting that state permitting authorities

commence a process to make new MACT determinations for under-construction plants

permitted under the Delisting Rule. The EPA expressed the view that plant builders

without a MACT determination were obliged to obtain one, but did not require them to

halt construction before doing so.

       Over the next several months, PSCo worked with Colorado authorities to

determine what new action would be required, and PSCo agreed to revise and supplement

the original MACT analysis it had submitted in January 2005 to reflect technological

advances since that time. Meanwhile, construction work on the Comanche 3 Unit

continued.

       In July 2009, the same month PSCo submitted its revised MACT analysis,

WildEarth sued PSCo, claiming that PSCo’s ongoing construction of the Comanche 3

Unit without a MACT determination violated section 112 of the Act. WildEarth sought

injunctive relief, in the form of halting construction until PSCo received a valid MACT

determination, as well as civil penalties, attorney’s fees, and a declaratory judgment.




       4
        The D.C. Circuit denied rehearing en banc in May 2008, and the Supreme Court
denied certiorari in February 2009.

                                            -8-
       In late 2009, PSCo finished construction of the Comanche 3 Unit and commenced

operations. Finally, in February 2010, PSCo received a final MACT determination from

the Colorado Department of Public Health and Environment.

       The court below dismissed WildEarth’s suit, finding that the change in law would

not apply retroactively to the plant construction. The district court found that applying

the D.C. Circuit’s ruling to the ongoing construction of the Comanche 3 Unit would

constitute retroactive application since PSCo obtained its permit under the prior

regulatory regime, and that retroactive application would be highly inequitable given

PSCo’s efforts to comply with MACT standards both before the Delisting Rule and after

the Rule was struck down.5

                                   III. Jurisdiction

       A. Standard of Review

       Before proceeding to the merits of WildEarth’s challenge, we must find that this

case satisfies the jurisdictional requirements of Article III of the Constitution. Although



       5
          Because we dismiss the case on other grounds, we will not review the merits of
the district court’s retroactivity finding. We note, however, that other courts have
confronted this issue in the wake of the New Jersey decision and concluded that the
retroactivity doctrine is not applicable to any construction activity occurring after that
decision was finalized. See Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627
F.3d 134, 143 (5th Cir. 2010) (“[T]he district court seemed to assume that to find a
violation of § 112(g)(2)(B), it would have to retroactively apply New Jersey, but that is
not the case.”); WildEarth Guardians v. Lamar Utils. Bd., 2010 WL 3239242, *6 (D.
Colo. 2010) (“Once the New Jersey decision was issued . . . assessing penalties for a
failure to seek a MACT determination after that point would not be to apply the case
retroactively.”).

                                             -9-
the jurisdictional issues we consider were not discussed in the court below, it is

appropriate for us to consider jurisdiction for the first time on appeal. Dias v. City &

Cnty. of Denver, 567 F.3d 1169, 1176 (10th Cir. 2009). Because jurisdiction is a legal

issue, our review is de novo. Natural Gas Royalties Qui Tam Litig. v. Pac. Gas & Elec.

Co., 562 F.3d 1032, 1038 (10th Cir. 2009).

       As we explain below, we conclude WildEarth’s claims are moot and thus do not

reach the merits.

       B. Redressability and Mootness

       The Constitution limits the exercise of the judicial power to “cases” and

“controversies.” U.S. CONST. art. III, § 2. Thus, “[w]ithout a live, concrete controversy,

we lack jurisdiction to consider claims no matter how meritorious.” Rio Grande Silvery

Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109 (10th Cir. 2010) (quoting

Habecker v. Town of Estes Park, 518 F.3d 1217, 1223 (10th Cir. 2008)). Here, we

examine two aspects of Article III jurisdiction: standing—in particular, its redressability

prong—and constitutional mootness.

              1. Redressability

       “Standing doctrine addresses whether, at the inception of the litigation, the

plaintiff had suffered a concrete injury that could be redressed by action of the court.”

Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1263 (10th Cir. 2004).

“Standing is determined as of the time the action is brought.” Utah Ass’n of Counties v.

Bush, 455 F.3d 1094, 1099 (10th Cir. 2006). “To establish Article III standing, the

                                             -10-
plaintiff bears the burden of demonstrating the following three elements: (1) an injury in

fact; (2) a causal connection between the injury and the challenged action; and (3) a

likelihood that a favorable decision will redress the injury.” Jordan v. Sosa, 654 F.3d

1012, 1019 (10th Cir. 2011) (emphasis added). “[A] plaintiff must demonstrate standing

separately for each form of relief sought.” Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167, 185 (2000).

       “To demonstrate redressability, a party must show that a favorable court judgment

is likely to relieve the party’s injury.” City of Hugo v. Nichols (Two Cases), 656 F.3d

1251, 1264 (10th Cir. 2011). “The plaintiff must show that a favorable judgment will

relieve a discrete injury, although it need not relieve his or her every injury.” Nova

Health Sys. v. Gandy, 416 F.3d 1149, 1158 (10th Cir. 2005). In addition, the plaintiff

must demonstrate that a favorable judgment would have a binding legal effect. See

Turner v. McGee, 681 F.3d 1215, 1218 (10th Cir. 2012). A showing that the relief

requested might redress the plaintiff’s injuries is generally insufficient to satisfy the

redressability requirement, see, e.g., Utah v. Babbitt, 137 F.3d 1193, 1213 (10th Cir.

1998), but may suffice if the alleged injury is a procedural one, see, e.g., id. at 1216.

              2. Mootness

       Mootness, like standing, is a jurisdictional doctrine originating in Article III’s

“case” or “controversy” language. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352




                                             -11-
(2006).6 Thus, “[w]hen a civil case becomes moot pending appellate adjudication, ‘[t]he

established practice . . . in the federal system . . . is to reverse or vacate the judgment

below and remand with a direction to dismiss.’” Arizonans for Official English v.

Arizona, 520 U.S. 43, 71 (1997) (quoting United States v. Munsingwear, Inc., 340 U.S.

36, 39 (1950)).

       Mootness usually results when a plaintiff has standing at the beginning of a case,

but, due to intervening events, loses one of the elements of standing during litigation;

thus, courts have sometimes described mootness as “the doctrine of standing set in a time

frame.” Id. at 68 n.22 (quoting U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397

(1980). This description, however, “is not comprehensive.” Laidlaw, 528 U.S. at 190.

Rather, mootness, though analytically similar to standing, differs in two significant ways.

       First, mootness doctrine is subject to an exception that sometimes allows courts to

retain jurisdiction even if one or more of the elements of standing is lost; namely, when

“defendant’s allegedly unlawful activity is ‘capable of repetition, yet evading review.’”

Id. Such situations arise, for example, when a plaintiff has been subjected to multiple

instances of unlawful action in the past, and can demonstrate a likelihood of future

repetition. See, e.g., Olmstead v. L.C., 527 U.S. 581, 594 (1999) (applying exception to



       6
          Mootness doctrine also encompasses a prudential aspect that gives courts the
discretion to dismiss a case under certain circumstances even when constitutional
jurisdiction is unquestionably satisfied. See Winzler v. Toyota Motor Sales U.S.A., Inc.,
681 F.3d 1208, 1210 (10th Cir. 2012). Because prudential mootness involves a somewhat
different set of concerns, we confine our discussion here to constitutional mootness.

                                              -12-
mentally-ill plaintiff challenging repeated institutionalization). This exception is unique

to the mootness context; “[s]tanding admits of no similar exception.” Laidlaw, 528 U.S.

at 191.

          Second, although the plaintiff bears the burden of demonstrating standing, the

defendant bears the burden of proving mootness. Adarand Constructors, Inc. v. Slater,

528 U.S. 216, 221 (2000). Sometimes this task is straightforward, “as when the parties

have settled or a plaintiff pursuing a nonsurviving claim has died.” Laidlaw, 528 U.S. at

192. But sometimes mootness relies on contested facts, particularly where the likelihood

of future harm is at issue. See id. at 190 (citing examples). In such cases, the defendant

may be unable to show mootness, even if the facts at that point would not have been

sufficient for the plaintiff to demonstrate standing at the start of the case. See Adarand,

528 U.S. at 222.

          The defendant’s burden is even greater when the defendant moots the case by

voluntarily ceasing its offending conduct. See id. Courts recognize that defendants

“should not be able to evade judicial review, or to defeat a judgment, by temporarily

altering questionable behavior.” Unified Sch. Dist. No. 259, Sedgwick Cnty., Kan. v.

Disability Rights Ctr. of Kan., 491 F.3d 1143, 1149 (10th Cir. 2007) (quoting City News

& Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n.1 (2001)). Thus, “a defendant

claiming that its voluntary compliance moots a case bears the formidable burden of

showing that it is absolutely clear the allegedly wrongful behavior could not reasonably

be expected to recur.” Laidlaw, 528 U.S. at 190.

                                              -13-
              3. Special Issues With Citizen-Suit Provisions

       Redressability and mootness doctrines encounter special problems in the context of

citizen suits in which the only available relief is a penalty payable to the government.

Although such penalties may vindicate the public interest, they do not directly redress any

injuries unique to the citizen-plaintiff.

       Two Supreme Court cases provide guidance: (1) Steel Co. v. Citizens for a Better

Environment, 523 U.S. 83 (1998), and (2) Friends of the Earth, Inc. v. Laidlaw

Environmental Services, Inc., 528 U.S. 167 (2000). A brief description of each will

illustrate the proper jurisdictional analysis here.

       In Steel Co., the Supreme Court considered the citizen-suit provisions of the

Emergency Planning and Community Right-To-Know Act of 1986 (EPCRA). Under this

act, users of toxic and hazardous chemicals are required to file annual chemical inventory

forms with local and state authorities. See Steel Co., 523 U.S. at 86. EPCRA authorizes

citizen suits against violators if the EPA fails to pursue an administrative or civil action

against the violator after 60 days of receiving notice of the violation, and authorizes civil

penalties to be paid only to the United States Treasury. See id. at 106. The citizen-

plaintiff discovered that the defendant, a user of toxic chemicals, had not filed the

required forms from 1988 through 1995. The plaintiff notified the EPA and the defendant

of the violation. Before the 60-day window had lapsed, the defendant filed all the

appropriate forms, thereby complying with the statute. The EPA declined to bring an

enforcement action, so the plaintiff sued.

                                              -14-
       The Supreme Court ruled that jurisdiction was improper because the plaintiff

failed to satisfy the redressability prong of standing. The Court found that the civil

penalties requested by the plaintiff were insufficient to support standing at the time the

suit was filed because, “[i]n requesting them, . . . respondent seeks not remediation of its

own injury . . . but vindication of the rule of law—the ‘undifferentiated public interest’ in

faithful execution of EPCRA.” Id. at 106 (quoting Lujan v. Defenders of Wildlife, 504

U.S. 555, 577 (1992)). The Court also found the plaintiff’s request for injunctive

relief—in the form of access to various records of the defendant—insufficient because it

would not do anything to remedy the past harm the plaintiff alleged it had suffered. See

id. at 108. While the Court acknowledged the possibility that such relief could “deter[]

petitioner from violating EPCRA in the future,” it nonetheless found such relief would

not remedy any injury because plaintiff had not “alleged a continuing violation or the

imminence of a future violation.” Id. Without such an allegation, the plaintiff’s

“generalized interest in deterrence . . . is insufficient.” Id. at 108–09.

       The Supreme Court also rejected the argument of the United States, as amicus

curiae, “that the injunctive relief does constitute remediation because there is a

presumption of [future] injury when the defendant has voluntarily ceased its illegal

activity in response to litigation.” Id. at 109 (alteration in original) (internal quotation

marks omitted). The Court explained that this presumption only applies to rebut a

defendant’s claim of mootness when the defendant ceases illegal activity after the

plaintiff files suit. See id. The Court went on to find the presumption inapplicable to

                                              -15-
standing analysis:

       It is an immense and unacceptable stretch to call the presumption into
       service as a substitute for the allegation of present or threatened injury upon
       which initial standing must be based. . . . “Past exposure to illegal conduct
       does not in itself show a present case or controversy regarding injunctive
       relief . . . if unaccompanied by any continuing, present adverse effects.”

Id. (quoting O’Shea v. Littleton, 414 U.S. 488, 496–97 (1974)).

       Two years later, in Laidlaw, the Supreme Court arrived at a different result. There,

the plaintiff sued under the citizen-suit provisions of the Clean Water Act, which, like the

citizen-suit provisions of EPCRA and the Clean Air Act, required civil penalties to be

paid only to the United States Treasury. See Laidlaw, 528 U.S. at 173. The plaintiff

alleged that Laidlaw, the operator of a wastewater treatment plant, had failed to comply

with mercury discharge limits in its Clean Water permit. See id. at 175. Laidlaw, unlike

the defendant in Steel Co., continued certain violations after the plaintiff filed suit;

however, at some point during the course of litigation, Laidlaw “achieved substantial

compliance with the terms of its . . . permit.” Id. at 173. Due to Laidlaw’s compliance,

the district court denied the plaintiff’s request for injunctive relief. The court, however,

did assess a civil penalty, finding that “[t]he total deterrent effect of the penalty would be

adequate to forestall future violations.” Id. (internal quotation marks omitted). Both

parties appealed the ruling on civil penalties, but neither party appealed the ruling on

injunctive relief. See id. at 179.

       The court of appeals found that, even assuming the plaintiff had standing at the

start of the suit, the case became moot once Laidlaw came into compliance with the Clean

                                             -16-
Water Act. See id. The court believed “that the elements of Article III standing—injury,

causation, and redressability—must persist at every stage of review, or else the action

becomes moot.” Id. Relying on Steel Co., the circuit held “that the case had become

moot because ‘the only remedy currently available to [the plaintiff]—civil penalties

payable to the government—would not redress any injury [plaintiff had] suffered.’” Id.

(quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 149 F.3d 303,

306 (4th Cir. 1998)).

       The Supreme Court reversed. First, it examined standing. The Court found that

the plaintiff’s interest in deterrence was sufficient to satisfy redressability: “for a plaintiff

who is injured or faces the threat of future injury due to illegal conduct ongoing at the

time of suit, a sanction that effectively abates that conduct and prevents its recurrence

provides a form of redress.” Id. at 185–86 (emphasis added). But the Court also

recognized “that there may be a point at which the deterrent effect of a claim for civil

penalties becomes so insubstantial or so remote that it cannot support citizen standing.”

Id. at 186. The case did not require the Court to “explore the outer limits of [this]

principle” because “[h]ere, the civil penalties sought by [the plaintiff] carried with them a

deterrent effect that made it likely, as opposed to merely speculative, that the penalties

would redress [the plaintiff’s] injuries by abating current violations and preventing future

ones.” Id. at 187. The Court distinguished Steel Co. based on when the offending

conduct stopped; there, the alleged violations had wholly abated by the time the plaintiff

filed suit. See id. at 188.

                                              -17-
       The Court then turned to mootness. The Court observed, “[t]he only conceivable

basis for a finding of mootness in this case is Laidlaw’s voluntary conduct—either its

achievement . . . of substantial compliance with its . . . permit or its more recent

shutdown” of the polluting facility. Id. at 189. Accordingly, the Court applied a

“stringent” standard: “[a] case might become moot if subsequent events made it

absolutely clear that the allegedly wrongful behavior could not reasonably be expected to

recur.” Id. (quoting United States v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199,

203 (1968)). Despite the closure of the offending facility, the Court found it was “far

from clear” whether this standard was met, id. at 194 n.6; the Court noted that Laidlaw

retained its permit, and that “[t]he effect of both Laidlaw’s compliance and the facility

closure on the prospect of future violations is a disputed factual matter,” id. at 193. Thus,

the Court remanded this issue for reconsideration. See id. at 194.

       Viewed together, Steel Co. and Laidlaw illustrate the functional distinctions

between redressability and mootness in the citizen-suit context. The plaintiff bears the

burden to establish standing at the time the suit is filed, and if the defendant’s offending

conduct has ceased by that time, we dismiss for lack of redressability. But if the

offending conduct ceases after the suit is filed, the defendant must establish mootness by

showing that its offending conduct “could not reasonably be expected to recur.” Laidlaw,

528 U.S. at 189.




                                             -18-
       C. Application to WildEarth’s Claims

       Applying the jurisdictional principles discussed above, we examine WildEarth’s

claims to determine if any can survive.

       WildEarth asserted two principal claims for relief under the Clean Air Act: (1)

civil penalties; and (2) injunctive relief against “construction or operation of Comanche

Unit 3 until and unless [PSCo] complies with the Clean Air Act and any applicable

regulatory requirements.” Compl. at 10, WildEarth Guardians v. Pub. Serv. Co. of Colo.,

805 F. Supp. 2d 1134 (D. Colo. 2011) (No. 09-cv-1576). In addition, it sought a

declaratory judgment, attorney’s fees and litigation costs, and “other relief as the Court

deems just and proper.” Id.

       PSCo now argues that we must dismiss due to lack of redressability because it is in

full compliance with the Act. At the time WildEarth filed suit, however, PSCo had not

obtained a MACT determination. As explained above, “[s]tanding is determined as of the

time the action is brought.” Utah Ass’n of Counties, 455 F.3d at 1099. At the time it was

filed, WildEarth’s suit, if meritorious, could have “abat[ed] [PSCo’s] current violations.”

Laidlaw, 528 U.S. at 188. Thus, WildEarth had standing to bring the suit.

       PSCo’s arguments nonetheless must be considered under the mootness doctrine.

As explained above, a defendant’s compliance with the law may moot the case if the

defendant shows it is “absolutely clear” that its conduct “could not reasonably be




                                            -19-
expected to recur,” thereby negating the potential deterrent value of the suit. Laidlaw,

528 U.S. at 189. We therefore proceed to analyze WildEarth’s claims under that

standard.

              1. Civil Penalties

       As discussed above, in most citizen suits, a plaintiff’s claim for civil penalties is

not rendered moot by the defendant’s compliance with the law because the plaintiff

retains a concrete interest in deterring the defendant from future violations. This case is a

rare exception. Under the unusual circumstances present here, Laidlaw’s “absolutely

clear” standard is met. PSCo’s alleged Clean Air Act violation—constructing a coal plant

without a MACT determination—could not reasonably be expected to recur.

       First, PSCo’s alleged non-compliance with the Act was precipitated by events

entirely outside its control. Typically, a Clean Air violation will come about because a

defendant intentionally or accidentally violates the terms of a permit or operates without

one. Here, however, PSCo’s permit was unquestionably valid at the time it began

construction in 2005, and only became allegedly invalid once the D.C. Circuit’s 2008

New Jersey decision struck down the Delisting Rule and reinstated the MACT

requirement. Thus, nothing here indicates a history or pattern of MACT violations

warranting a deterrent; rather, the alleged violation here was a one-off event caused by an

unanticipated change in the law.

       Second, PSCo made all reasonable efforts to comply with the Act, and even went

above and beyond what was required in attempting to accommodate environmental

                                             -20-
interests. Before construction began, PSCo reached a settlement agreement with the State

of Colorado and several prominent environmental organizations in which it agreed to

mercury controls beyond what the law then required. PSCo applied for a MACT

determination with the agreed-upon standards, but, due to the Delisting Rule, state

regulatory officials never issued a MACT determination. Then, when the MACT

requirement was reinstated by the New Jersey decision, PSCo worked with state and

federal authorities to come into compliance with the reimposed regulatory requirements.

And, in any event, PSCo’s construction already included the mercury controls specified in

the 2004 settlement agreement. These compliance efforts weigh significantly against

finding that the violation here—construction without a MACT determination—could

reasonably be expected to recur.

       It is possible PSCo could have done more; in an overabundance of caution, it could

have halted all construction on the Comanche 3 Unit until it obtained a MACT

determination, despite the fact that no state or federal authority ever suggested such action

was required.7 Doing so, of course, would have resulted in significant costs and delay.



       7
          Some cases addressing coal-fired plants in other courts have since held that
failure to halt construction can violate the Clean Air Act. See Sierra Club, Inc. v. Sandy
Creek Energy Assocs., L.P., 627 F.3d 134, 142 (5th Cir. 2010); WildEarth Guardians v.
Lamar Utils. Bd., No. 09-CV-02974, 2010 WL 3239242, at *6 (D. Colo. Aug. 13, 2010).
But PSCo did not have the benefit of those cases at the time. More importantly, neither
of those cases discussed mootness because the defendants, unlike PSCo, still had not
obtained a MACT determination. See Sandy Creek, 627 F.3d at 140; Lamar, 2010 WL
3239242 at *5. Thus, they are not relevant to the critical issue here: whether civil
penalties would deter PSCo from future violations.

                                            -21-
That PSCo instead chose to work towards Clean Air Act compliance while continuing

construction under a permit valid at the time it was issued—as the government instructed

it to do8—does not suggest a likelihood of future unlawful conduct needing to be deterred.

To the contrary, it suggests the opposite.

       Third, the particular violation alleged here is unlikely to be repeated. Since the

completion of the Comanche 3 Unit, the regulatory environment has changed yet again,

with the federal government issuing uniform mercury emissions standards that apply to

all new coal plants. Thus, if PSCo constructs a new coal plant in the future, it will no

longer be subject to the case-by-case MACT determination provisions that WildEarth

alleges were violated in this case. Cf. Wilderness Soc’y v. Kane Cnty., 632 F.3d 1162,

1176 (10th Cir. 2011) (en banc) (Gorsuch, J., concurring) (finding ordinance dispute moot

because ordinance had been repealed).




       8
          See Supp. App. at 101 (letter from Colorado Department of Public Health and
Environment notifying EPA that “[c]onstruction of Unit 3 is proceeding under valid
permits”); id. at 113 (letter from Colorado Department of Public Health and Environment
to PSCo stating, “During this on-going administrative process, construction of Unit 3 is
proceeding under valid permits.”); App. at 62–63 (letter from Principal Deputy Assistant
Administrator of the EPA to Regional Administrators “request[ing] that the appropriate
State or local permitting authority commence a process under Section 112(g) to make a
new-source MACT determination” for in-progress plants); id. at 64 (letter from Colorado
Department of Public Health and Environment to PSCo, ordering PSCo to “supplement
and revise your initial 112(g) determination [first submitted in 2005] . . . within ninety
(90) days”); id. at 66 (letter from EPA to PSCo ordering it “to obtain a new source
[MACT] determination and a schedule for coming into compliance with the requirements
of Section 112(g).” At no point did any state or federal agency hint that PSCo was
required to halt on-going construction.

                                             -22-
       In light of these circumstances, we conclude PSCo has demonstrated that its

alleged unlawful conduct is not reasonably likely to recur. Because of this, WildEarth’s

claim for civil penalties, even if successful, would have no deterrent value, and would

only serve the public’s generalized interest in Clean Air Act compliance by power

utilities. But “a general interest common to all members of the public” does not satisfy

Article III. Lance v. Coffman, 549 U.S. 437, 440 (2007); see Laidlaw, 528 U.S. at 181;

Steel Co., 523 U.S. at 108–09.

       2. Supplemental Environmental Project

       WildEarth nonetheless argues that a live claim for civil penalties remains because,

if PSCo is found to have violated the Act, the district court could award a Supplemental

Environmental Project (SEP). As noted above, the citizen-suit provisions authorize

courts to earmark up to $100,000 of any civil penalty they award to “be used in beneficial

mitigation projects which are consistent with this chapter and enhance the public health or

the environment.” CAA § 304(g)(2). WildEarth argues that even if civil penalties would

not deter PSCo from future violations, a SEP could remedy the injuries it has suffered as

a result of PSCo’s mercury emissions.

       Only a few courts appear to have addressed the question whether a SEP may save

a Clean Air claim that would otherwise be dismissed for mootness or lack of standing.

Most have rejected this argument based on the specific facts of the case before them,

while acknowledging the theoretical possibility that a SEP request could support

jurisdiction under different circumstances.

                                              -23-
       For example, in Cambrians for Thoughtful Development, U.A. v. Didon Milling,

Inc., 571 F. Supp. 2d 972 (W.D. Wisc. 2008), plaintiffs alleged defendant had violated

filtering conditions in its permit. Id. at 978. The court first found deterrence to be an

insufficient basis for standing because the defendant’s circumstances had changed

significantly, making future violations of a similar nature unlikely. See id. at 979–80.

The court then addressed plaintiffs’ argument that a SEP could support standing. The

Court found:

       A mitigation project that proposes to remedy property damage or health
       consequences of defendant’s past violations could redress plaintiffs’
       injuries. However, plaintiffs do not request such a project or even suggest
       that such injuries are identifiable. A project that generally enhances the
       public health or environment is no more redress for plaintiffs’ particular
       claims than a fine that generally encourages future compliance with the Act
       and benefits the undifferentiated public interest. Steel Co., 523 U.S. at 106.
       Plaintiffs suggest nothing more, identifying only a project to reduce air
       pollution, and a project to make information about air emissions . . . better
       available. Such projects do not effectively redress injuries to plaintiffs . . .
       to any greater degree than fines for wholly past non-compliance.

Id. at 981 (citations omitted) (emphasis added). Accordingly, the court found plaintiffs

lacked standing. See id.

       A similar result was reached in Families for Asbestos Compliance Testing and

Safety v. City of St. Louis, 638 F. Supp. 2d 1117 (E.D. Mo. 2009). There, the plaintiffs’

alleged injury was exposure to asbestos as a result of demolitions carried out by the

defendant. See id. at 1119. Plaintiffs requested “an order directing defendant . . . to

sample soil in the [potentially contaminated] area and to restrict public access to any areas

found to be contaminated by asbestos.” Id. at 1124–25. The court, however, found that

                                             -24-
this relief would only achieve “a generalized public benefit.” Id. at 1124. The evidence

showed that soil testing would “not lead to a determination of whether plaintiff’s

members inhaled asbestos during the demolitions . . . [nor] allow for a determination of

whether asbestos in the soil has been remediated.” Id. at 1125. Furthermore, the court

found “use restrictions will have no effect on [plaintiffs] as they continue to frequent an

area that they already believe is unsafe.” Id. Because the requested relief would not

“alter the status quo . . . [or] confer any benefit on plaintiff or its members,” the court

found redressability lacking and dismissed the case. Id.

       Finally, in Anderson v. Farmland Industries, Inc., 45 F. Supp. 2d 863 (D. Kan.

1999),9 the court found a potential SEP insufficient to support standing for two reasons.

First, “plaintiffs [did] not request[] this relief in their complaint.” Id. at 871 n.10.

Second, “such relief would not remedy the injuries suffered.” Id.

       We have identified only one case in which a SEP was found sufficient to support

standing: United States v. LTV Steel Co., Inc., 187 F.R.D. 522 (E.D. Penn. 1998) (mem.

order). There, a citizen group sought to intervene on the government’s side in a Clean Air

enforcement action. See id. at 524. The court found the Act’s SEP provision was

sufficient to sustain intervenor standing because it “provides for the establishment of a

beneficial mitigation fund which could be structured to provide some measure of redress

to [plaintiffs-intervenors] living or working in or near [the site of defendant’s] alleged


       9
         Although Anderson was decided before Laidlaw, the standard it applied was
consistent with Laidlaw. See Anderson, 45 F. Supp. 2d at 872.

                                              -25-
violations.” Id. at 526. The court found Steel Co. distinguishable because the EPCRA

citizen-suit provisions examined in that case did not include anything comparable to the

Clean Air Act’s SEP provision. See id. at 526 n.2.

       We do not find LTV Steel persuasive, for several reasons. First, the LTV Steel

plaintiffs specifically invoked the potential SEP in their motion to intervene, requesting

“to participate . . . [in] the formulation of any Supplemental Environment Project (or

‘beneficial mitigation project’) that may be funded from any civil penalties imposed.” Id.

at 524. WildEarth made no such request before the district court. Second, the LTV Steel

plaintiffs alleged specific injuries that concretely affected them; they “liv[ed] or work[ed]

in the . . . neighborhood . . . where the [polluting] facility was located,” and “must expend

substantial sums to clean their houses and other property fouled by the emissions.” Id. at

525.

       Here, although WildEarth alleges that its “members live, work, and engage in

outdoor recreation in areas that were affected by . . . [Hazardous Air Pollutants] emitted

during [PSCo]’s noncompliance,” Reply Br. at 19, they do not identify any actual or

imminent injuries they have suffered or will suffer as a result of such emissions.10 [See


       10
          In its complaint, WildEarth made only the conclusory allegation that its
members “live, work, garden, and engage in outdoor recreation in areas that would be
affected by” PSCo’s mercury emissions. Compl., supra, at 4. While the complaint
described many of the negative health effects of mercury exposure, it did not explain how
mercury emissions had affected WildEarth’s members specifically, as opposed to
Coloradans in general. Cf. Laidlaw, 528 U.S. at 182–83 (describing changes in plaintiff’s
behavior precipitated by defendant’s alleged Clean Air violations, and stating
“environmental plaintiffs adequately allege injury in fact when they aver that they use the

                                            -26-
Aplt. Br. at 19–20.] See Laidlaw, 528 U.S. at 181 (“The relevant showing . . . is not

injury to the environment but injury to the plaintiff.”). And because the MACT permit

itself requires PSCo to average emissions over a full year, WildEarth cannot even show

that the mercury emitted during the few months in which PSCo operated without a

MACT determination was excessive in any practical sense. Accordingly, it is not clear

how any mitigation project could possibly redress any injuries plaintiffs have suffered or

will suffer.11 And while forcing a defendant to conduct a SEP could deter it from future

violations, as explained previously, no deterrent effect is reasonably possible here.

       While we do not foreclose the possibility that a request for a SEP, in other

circumstances, could save an otherwise-moot dispute, we find that it does not do so here.

Significantly, WildEarth did not request a SEP in its complaint, and the only other

injunctive relief it requested was for PSCo to halt construction until it obtained a MACT

determination. And, as just described, WildEarth does not plausibly explain how a SEP

would redress its ill-defined injuries, as opposed to merely advancing generalized

environmental interests. Thus, WildEarth’s request for a SEP, divorced from any



affected area and are persons for whom the aesthetic and recreational values of the area
will be lessened” (internal quotation marks omitted)). It is also notable that any mercury
emissions that occurred were limited by the mercury controls already installed pursuant to
PSCo’s settlement with environmental groups.
       11
          The only specific SEP WildEarth suggests is for PSCo “to install solar panels
on homes and community buildings in order to reduce the environmental impact of its
excess emissions.” Reply Br. at 22. We do not see how solar panels could redress
injuries caused by PSCo’s past mercury emissions—let alone any injuries suffered by
WildEarth specifically.

                                            -27-
cognizable deterrence interest, could not have supported standing at the start of this

litigation, and cannot save the case from mootness now.

              3. Injunctive Relief

       WildEarth’s claim for injunctive relief is also moot. WildEarth asked the district

court to enjoin “construction or operation of Comanche Unit 3 until and unless it

complies with the Clean Air Act and any applicable regulatory requirements.” Compl.,

supra, at 10. PSCo is now in full compliance with the Act and the relevant regulations;

WildEarth’s wish has come true. Thus, WildEarth’s request for injunctive relief is moot.

       Seeking to salvage its claim for injunctive relief, WildEarth, in its Reply Brief,

requests additional, wide-ranging injunctive relief “to further reduce [Hazardous Air

Pollutant] emissions in Colorado.” Reply Br. at 20. WildEarth claims “[t]he types of

injunctive relief available in this case include requiring [PSCo] to halt operations for a

limited period of time, to complete a [SEP], or to take affirmative action to mitigate the

harm created by these excess emissions.” Id. at 21.12

       This late request is unpersuasive. WildEarth identifies no legal authority

supporting such sweeping relief. As relevant here, the Act’s citizen-suit provisions, by

their very terms, only give courts “jurisdiction . . . to enforce . . . an emissions standard or


       12
           WildEarth suggests such affirmative action might include “paying for the
testing of mercury in water bodies, to speed up the retirement of some of [PSCo’s] older
coal-fired power plants, or to take additional measures to reduce the amount of
[Hazardous Air Pollutants] emitted from these plants.” Reply Br. at 22. We note that
PSCo, in its 2004 settlement agreement, has already promised to install additional
pollution controls on its older coal plants.

                                              -28-
limitation . . . and to apply any appropriate civil penalties.” CAA § 304(a). PSCo is now

in compliance with the applicable emissions standards and limitations, so there is nothing

left to enforce. Insofar as the Act contemplates further relief, it is only in the form of a

SEP stemming from any civil penalties recovered—the claim for which is moot, as

discussed above.

       In addition, WildEarth does not explain how further injunctive relief will redress

its particular injuries, as opposed to the public’s generalized interest in Clean Air Act

compliance. See United States v. Vera-Flores, 496 F.3d 1177, 1180 (10th Cir. 2007)

(“Where judicial relief will not remedy the appellant’s injury, the appellant can no longer

satisfy the Article III case or controversy jurisdictional requirement and the appeal is

moot.”) (internal quotation marks omitted).

       Thus, WildEarth’s requests for injunctive relief cannot save this claim from

mootness.

               4. Other Requested Relief

       WildEarth’s remaining claims are easily dispensed.

       First, WildEarth seeks declaratory relief. Such relief is not an appropriate basis for

standing except under special circumstances not present here, such as when a plaintiff is

threatened with potential enforcement action. See MedImmune, Inc. v. Genentech, Inc.,

549 U.S. 118, 128 (2007); see also Nova Health Sys., 416 F.3d at 1162 (Briscoe, J.,

dissenting).




                                             -29-
       Second, WildEarth seeks attorney’s fees and legal costs. But “reimbursement of

the costs of litigation cannot alone support standing.” Steel Co., 523 U.S. at 108.

       Third, WildEarth requests “other relief as the court deems just and proper.”

Compl., supra, at 10. Such boilerplate requests for miscellaneous relief are highly

disfavored. See United States v. City of Las Cruces, 289 F.3d 1170, 1181 n.10 (10th Cir.

2002) (“This court rejects the contention that a boilerplate prayer for ‘necessary and

proper relief’ converts a declaratory judgment action into some other type of lawsuit.”);

Rosen v. Cascade Int’l, Inc., 21 F.3d 1520, 1526 n.12 (11th Cir. 1994) (“The mere

incantation of such boilerplate language does not convert a legal cause of action into a

legitimate request for equitable relief.”); see also Frazier v. Simmons, 254 F.3d 1247,

1254 (10th Cir. 2001) (cautioning that “a boilerplate recitation of ‘just and equitable’

relief included in one’s prayer for relief is far from an exemplary request for prospective

equitable relief,” but allowing the claim to proceed because plaintiff’s complaint as a

whole “sufficiently indicated” a request for such relief).

       WildEarth gives no indication that it sought below the type of equitable relief it

now claims we have the power to grant. The only injunctive relief it specifically

requested in its complaint was to enjoin construction until PSCo complied with the Act’s

MACT provisions. That request is now moot. A broad request for “other” relief cannot

save the complaint in these circumstances.




                                             -30-
                                   IV. Conclusion

      Because PSCo has shown that its alleged Clean Air violations are not reasonably

likely to recur, WildEarth’s suit can serve no cognizable deterrent purpose. Thus, the

case is moot. Accordingly, we DISMISS this appeal as moot, VACATE the judgment of

the district court, and REMAND the mooted claims to the district court with instructions

to dismiss without prejudice.




                                           -31-
