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Sierra Club v. Khanjee Holdings (US) Inc.

Sierra Club v. Khanjee Holdings (US) Inc.

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Published by Dave Scriven-Young
The U.S. Court of Appeals for the Seventh Circuit recently issued an opinion in Sierra Club v. Khanjee Holdings (US) Inc., No. 09-4008, in which the Court affirmed the trial court’s assessment of a $100,000 civil penalty, plus attorney’s fees of the plaintiff, against the defendants that started construction of a power plant without a permit. This case involved an application to the Illinois EPA for a Prevention of Significant Deterioration (“PSD”) permit needed to build a coal power plant in southern Illinois.
The U.S. Court of Appeals for the Seventh Circuit recently issued an opinion in Sierra Club v. Khanjee Holdings (US) Inc., No. 09-4008, in which the Court affirmed the trial court’s assessment of a $100,000 civil penalty, plus attorney’s fees of the plaintiff, against the defendants that started construction of a power plant without a permit. This case involved an application to the Illinois EPA for a Prevention of Significant Deterioration (“PSD”) permit needed to build a coal power plant in southern Illinois.

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Published by: Dave Scriven-Young on Sep 20, 2011
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09/20/2011

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In the
United States Court of Appeals
 For the Seventh Circuit
 
No. 09-4008S
IERRA
C
LUB
 ,
Plaintiff-Appellee,v.
K
HANJEE
H
OLDING
(US)
 
I
NCORPORATED
 ,
Defendant-Appellant
. 
Appeal from the United States District Courtfor the Southern District of Illinois.No. 4:05-cv-04095
 — 
J. Phil Gilbert
 ,
 Judge
.
 
A
RGUED
D
ECEMBER
14,
 
2010
 — 
D
ECIDED
A
UGUST
24,
 
2011
 Before
 
B
AUER
 ,
 
R
IPPLE
 ,
 
and
 
W
ILLIAMS
 ,
 
Circuit Judges
.W
ILLIAMS
 ,
Circuit Judge
. This matter comes to us as asuccessive appeal. The original defendants wanted to build a power plant in southern Illinois. In the firstappeal, we concluded that the defendants’ Prevention ofSignificant Deterioration (“PSD”) permit, which theyneeded in order to build the power plant,
see
42 U.S.C.§ 7475(a), had expired. We therefore held that it was
 
2No. 09-4008proper for the district court to grant summary judgmentin favor of plaintiff Sierra Club and to enjoin the defen-dants from engaging in further construction activitiesuntil they obtained a new permit.After our ruling, the district court assessed a penaltyof $100,000 on all of the defendants, jointly and severally,and awarded attorneys’ fees to Sierra Club. DefendantKhanjee Holding appeals that decision.In this appeal, Khanjee contends that the district courtlacked subject matter jurisdiction. But we already deter-mined in the previous appeal that the district courthad subject matter jurisdiction, and there is no reasonto revisit that ruling.Khanjee also argues that the district court assessedpenalties and fees in violation of Khanjee’s constitutionalrights. We find, however, that Khanjee waived its con-stitutional arguments by not raising them before thedistrict court.Lastly, Khanjee contends that the district court commit-ted error when it weighed the requisite statutory fac-tors. But we conclude that the district court did not abuseits discretion. The court considered all of the relevantstatutory factors and did not make any clearly erroneousfindings of fact in assessing a penalty and awarding fees.We affirm.
 
No. 09-40083
FCP is a wholly owned subsidiary of EnviroPower. The
1
two entities share the same chief executive officer, Mr. FrankRotondi.
I. BACKGROUND
Franklin County Power (“FCP”), EnviroPower, and
1
Khanjee are experienced developers of electric powerplants in the United States and in other countries, havingsuccessfully built about a dozen plants currently in opera-tion. All three participated in the first appeal, but onlyKhanjee is a party to this appeal.In 2000, FCP applied to the Illinois EnvironmentalProtection Agency (“Illinois EPA”) for a PSD permit inorder to build a coal power plant in southern Illinois. In2001, the Illinois EPA issued the permit, which would become invalid if construction was not commencedwithin 18 months after receipt of approval, was discon-tinued for a period of 18 months or more, or was notcommenced within a reasonable time.In mid-2002, Khanjee began to serve as the lead devel-oper for the project. Excavation on the site began inearly 2003, but was abandoned shortly after due to anunrelated dispute. In March 2003, Khanjee andEnviroPower entered into a Development and PurchaseAgreement, and in August of that year, Khanjee issuedan offering memorandum seeking financial support forthe project.In the meantime, FCP’s landlord had the site refilled because FCP did not make a payment on its lease. In

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