Holland & Hart Chided For Long Briefs, 'Frivolous' Filing - Law360

Holland & Hart Chided For Long Briefs, 'Frivolous' Filing - Law360
by Cara Bayles

Law360, San Francisco (January 6, 2017, 10:38 PM EST) -- A California federal judge dismissed a suit accusing geothermal plants of Clean Air Act violations on Friday, but not before sanctioning their counsel at Hale Lane Peek Dennison & Howard and Holland & Hart LLP for "making a frivolous filing, continuing to use lengthy footnotes and ignoring page limits despite the court’s prior warning."

The plaintiffs, which included an environmental nonprofit and a labor union, alleged Mammoth Pacific LP, Ormat Technologies Inc. and Ormat Nevada Inc. — the owners and operators of four geothermal plants located in the Great Basin Valleys Air Basin — broke local air district rules. The plants use underground hot springs to heat volatile organic compounds, which form ozone when released into the atmosphere. Great Basin Unified Air Pollution Control District rules prohibit the construction or operation of new plants that exceed emissions thresholds unless those facilities use the best available technology to control pollution and get emissions offsets.

U.S. District Judge Morrison C. England Jr. granted the power companies’ motion for summary judgment Friday, finding the five-year statute of limitations on permitting from when the plants were originally constructed in the late 1980s had long expired. But even as he found in the defendants’ favor, he sanctioned their law firms, deriding them for filing a 29-page motion for summary judgement, a 24-page reply and a 20-page opposition, then moving for a surreply on top of "83 pages of often duplicative arguments." The total sanction amount is unclear, as the order mentions a $2,500 fee in the introduction, and a $1,500 fee twice elsewhere in the ruling.

“The court previously admonished defendants against using lengthy footnotes and otherwise attempting to avoid page limit requirements set by the court," the judge wrote. "Nevertheless, defendants’ moving papers continued to follow the same practices, ignored page limits set out by the court and moved for leave to file a frivolous surreply."

The judge found the clock on construction permitting violations had run out, as the permitting process for the original construction was not ongoing. He also rejected the plaintiffs’ argument that 2009 and 2014 re-permitting applications, which were not yet time-barred, should have considered the four plants into units that would exceed pollution standards, saying that even if the court invalidated those permits, it would have no effect. The court had already found that combining the four plants into two still wouldn’t trigger remediation requirements, because they wouldn’t meet the maximum emissions limit.