A year ago, we reported that Judge Ricardo M. Urbina of the U.S. District Court for the District of Columbia. had dismissed a lawsuit brought by two environmental groups against the Departments of Energy and Treasury, alleging that the departments had violated the National Environmental Protection Act (NEPA) and the Endangered Species Act (ESA) by issuing federal tax credits for “clean” coal plants without fully assessing the global warming related impacts of those credits.  (See background on the lawsuit here.)

In Appalachian Voices, et al. v. Bodman, e. al. (No. 08-0380, D. D.C.,), Judge Urbina held that while the plaintiffs had adequately alleged an injury in fact with respect to one of the nine coal-fired power plants identified in the lawsuit — the infamous Cliffside plant in North Carolina – they had failed to sufficiently allege that the injury arising from Cliffside was traceable to the tax credit program.  The Judge noted that Duke Energy was already planning to construct Cliffside when it received the credit, significantly undermining the argument that the tax credit had a causal effect on the plant’s future emissions.

On Sept. 23, 2009, however, Judge Urbina granted the plaintiffs’ motion to file a second amended complaint and “remedy the deficiencies that prompted the dismissal.” In particular, the new complaint alleges that tax credits represented approximately 7% of the construction costs of Cliffside, and were therefore “at least a substantial factor motivating Duke Energy to construct [it].”  In granting the plaintiffs’ motion to amend, Judge Urbina  held that the plaintiffs “have surmounted the [traceability] hurdle – albeit by only a slight margin – necessary to allow them to amend their complaint.”

In an answer to the second amended complaint filed on Oct. 7, the defendants continue to deny liability under NEPA and the ESA.

In addition, the plaintiffs have renewed their motion for a preliminary injunction to halt construction of Cliffside, which allegedly is 40% complete.  Defendants have opposed this motion.

Stay tuned to Warming Law for more updates.