IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-30651

LOUISIANA GENERATING L.L.C.; NRG ENERGY INCORPORATED, 

Plaintiffs-Appellees - Cross-Appellants

v.

ILLINOIS UNION INSURANCE COMPANY,

Defendant-Appellant - Cross-Appellee

------------------------------------------------------------------------

ILLINOIS UNION INSURANCE COMPANY,

Plaintiff-Appellant - Cross-Appellee

v.

NRG ENERGY INCORPORATED; LOUISIANA GENERATING L.L.C.,

Defendants-Appellees - Cross-Appellants

_______________________________________________________________________

Cons w/ 12-30877

LOUISIANA GENERATING, L.L.C.; NRG ENERGY, INCORPORATED, 

Plaintiffs-Appellees - Cross-Appellants

v.

ILLINOIS UNION INSURANCE COMPANY, 

Defendant-Appellant - Cross-Appellee

United States Court of Appeals

Fifth Circuit

F I L E D

May 15, 2013

Lyle W. Cayce

Clerk
No. 12-30651

2

----------------------------------------------------------------------------------------------

ILLINOIS UNION INSURANCE COMPANY, 

Plaintiff-Appellant - Cross-Appellee

v. 

NRG ENERGY, INCORPORATED; LOUISIANA GENERATING, L.L.C.; 

Defendants-Appellees - Cross-Appellants

________________________________________________________________________

Cons w/ 12-30879

LOUISIANA GENERATING, L.L.C.; NRG ENERGY, INCORPORATED,

Plaintiffs-Appellees

v.

ILLINOIS UNION INSURANCE COMPANY,

Defendant-Appellant

----------------------------------------------------------------------------------------------

ILLINOIS UNION INSURANCE COMPANY,

Plaintiff-Appellant

v.

NRG ENERGY, INCORPORATED; LOUISIANA GENERATING, L.L.C.; 

Defendants-Appellees

Appeals from the United States District Court

for the Middle District of Louisiana

Before DAVIS, GRAVES, and HIGGINSON, Circuit Judges.
No. 12-30651

3

JAMES E. GRAVES, JR., Circuit Judge:

This case concerns whether Illinois Union Insurance Company (“ILU”) has

a duty to defend Louisiana GeneratingLLC (“LaGen”) in an underlying suitfiled

against it by the Environmental Protection Agency (“EPA”) and the Louisiana

Department of Environmental Quality (“LDEQ”) for alleged Clean Air Act

(“CAA”) and state environmental law violations. The district court held that

under the insurance policy at issue, there is a duty to defend. We affirm.

I. Factual and Procedural Background

The underlying suit in this duty to defend case between LaGen and ILU

revolves around Big Cajun II (“BCII”), a coal-fired electric steam generating

plant owned by LaGen in Louisiana. In February 2005 and December 2006 the

EPA sent LaGen Notices of Violation (“NOVs”) alleging that certain major

modifications performed without a permit at BCII in 1998 and 1999 caused net

emissions increases in violation of the CAA. In January 2009, NRG Energy,

LaGen’s parent, purchased a Custom Premises Pollution Liability Insurance

Policy (“the policy”) from ILU to cover a large number of its facilities, including

BCII. The effective date of the policy is January 22, 2009. 

On February 18, 2009, the EPA filed the underlying suit over the

modifications made to BCII, asserting violations of the CAA and Louisiana

environmental laws. LDEQ intervened in the suit, asserting essentially

identical allegations and claims. The suit alleges that the previous owner of

BCII did work on the plant that increased certain emissions which under

applicable law would be considered “major modifications” and would have

required a Prevention of Significant Deterioration of Air Quality permit (“PSD

permit”) before being completed. The suit also alleges that the plant

modifications failed to employ best available control technology (“BACT”) to limit

emissions, as required by the CAA and Louisiana law. The complaints allege

that since acquiring BCII, LaGen has continued to operate the plant without
No. 12-30651

4

seeking a PSD permit for the modifications. As a result, the complaints assert,

BCII has emitted excess amounts of regulated pollutants into the air. 

The parties primarily dispute whether any relief sought by the EPA and

LDEQ is potentially covered by the policy. The underlying EPA suit sets forth

several prayers for relief which ask the district court to:

1. Permanently enjoin the defendant from operating Units 1 and

2 of the Big Cajun II Power Plant, except in accordance with

the Clean Air Act and any applicable regulatory

requirements;

2. Order the defendant to remedy its past violations by, among

other things, requiring the defendant to install and operate,

as appropriate BACT at Units 1 and 2 of the Big Cajun Power

Plant, for each pollutant subject to regulation under the Clean

Air Act;

3. Order the defendant to apply for permits that are in

conformity with the requirements of the PSD and the

Louisiana Title V Operating Permits program;

4. Order the defendant to conduct audits of its operations to

determine if any additional modifications have occurred which

would require it to meet the requirements of PSD and report

the results of these audits to the United States;

5. Order the defendant to surrender emission allowances or

credits to offset and mitigate the illegal emissions under the

PSD and Louisiana Title V Operating Permits program;

6. Order the defendant to take other appropriate actions to

remedy, mitigate, and offsetthe harm to public health and the

environment caused by the violations of the Clean Air Act

alleged above;

7. Assess a civil penalty against the defendant of up to $27,500

per day for each violation of the Clean Air Act and applicable

regulations which occurred between January 31, 1997 and

March 15, 2004; $32,500 for each violation that occurred
No. 12-30651

1

ILU had previously instituted a separate suit seeking a declaratory judgment that it

had no duty to defend or indemnify under the policy in New York federal court. The matters

were consolidated in the Middle District of Louisiana.

5

between March 15, 2004 and January 12, 2009; and $37,500

for each violation occurring after January 12, 2009;

8. Award the United States its costs of this action; and,

9. Grant such other relief as the Court deems just and proper.

As we discuss below, on appeal ILU argues that none of the prayers for relief are

covered, while LaGen argues that there is coverage for paragraphs 5, 6 and 7 of

the EPA’s prayer for relief.

LaGen sought coverage from ILU under the policy for legal fees associated

with the underlying EPA suit, and ILU denied that the EPA suit was covered by

the policy. LaGen filed suit in Louisiana federal court seeking a declaratory

judgment that ILU has a duty to defend and indemnify LaGen in the EPA suit.1

The district court bifurcated the trial between the duty to defend and the duty

to indemnify. Both parties moved for partial summary judgment on the issue of

the duty to defend, asserting that the policy was clear as a matter of law. In a

January 30, 2012 order,the district court granted summary judgmentfor LaGen

with regard to the duty to defend and denied the motion for summary judgment

filed by ILU. The district court held that ILU failed to prove that there was no

possibility the claims in the underlying EPA suit would be covered and thus had

a duty to defend. 

ILU moved for a new trial or alternatively for certification of the

interlocutory ruling for immediate appeal pursuant to 28 U.S.C. § 1292(b), or in

the further alternative, to certify the ruling for immediate appeal as a final

judgment pursuant to Federal Rule of Civil Procedure 54(b). In a May 15, 2012

order, the district court treated that motion as one for reconsideration under

Rule 54(b) and denied it. The district court granted the motion for certification
No. 12-30651

2 The parties also pursued other avenues of appeal, resulting in multiple appeals from

the same two district court orders. ILU previously filed a motion to dismiss LaGen’s crossappeal in one of the cases, No. 12-30651, disputing the timeliness of LaGen’s cross-appeal in

that case. There is no dispute that LaGen’s petition for cross-appeal was timely in No. 12-

90053, the case in which this court granted permission to both parties to appeal pursuant to

§ 1292(b), and the multiple appeals have been consolidated. Thus, ILU’s motion to dismiss

LaGen’s cross-appeal is now denied as moot.

6

of both the district court order and the denial of reconsideration pursuant to §

1292(b). ILU filed a petition in this court seeking permission to appeal the

interlocutory orders pursuant to § 1292(b), and LaGen filed a cross-petition for

permission to appeal the district court’s holding that costs relating to injunctive

relief were not covered by the policy. We granted both petitions for permission

to appeal.2

II. Discussion

The only issue decided by the district court on summary judgment was the

duty to defend. Thus, the only question on appeal concerns whether the district

court correctly held that ILU has a duty to defend LaGen in the underlying suit

filed by the EPA and LDEQ.

A. Standard of Review and Choice of Law

This court reviews the district court’s grant of summary judgment de novo,

applying the same legal standards as the district court.Travelers Lloyds Ins. Co.

v. Pac. Emp’rs Ins. Co., 602 F.3d 677, 681 (5th Cir. 2010). Summary judgment

is appropriate when there is no genuine issue of material fact and the movant

is entitled to judgment as a matter of law. Id. The district court’s interpretation

of an insurance contract is a question of law subject to de novo review. Id.

Additionally, a court of appeals is not limited to a district court’s reasons for its

decision, but may affirm a district court ruling “on any ground supported by the

record.” See Ballew v. Cont’l Airlines, Inc., 668 F.3d 777, 781 (5th Cir. 2012). 

The policy contains a choice of law clause specifying that “All matters

arising hereunder including questions relating to the validity, interpretation,
No. 12-30651

7

performance, and enforcement of this Policy shall be determined in accordance

with the law and practices of the State of New York.” Thus, New York law

governs the interpretation of the policy. 

B. Coverage for Claims and Remediation Costs

On appeal, ILU argues that it has no duty to defend because the

underlying EPA suit does not seek any form of relief that potentially falls within

the policy’s coverage. ILU argues that the forms of relief covered by the

policy–including relief for property damage and remediation costs–are

unavailable to the EPA as a matter of law because the CAA only allows the EPA

to seek prospective relief and does not allow the EPA to seek compensatory

damages. ILU further asserts that the policy excludes coverage for any

injunctive relief. LaGen responds by arguing not only that the underlying suit

does assert a claim for property damage and does seek remediation costs as

defined by the policy, which is not limited to compensatory damages, but also

thatthe district court erred when it stated thatinjunctive relief is excluded from

the policy’s coverage. 

In New York, whether there is a duty to defend is determined by

comparing the allegations in the underlying complaintto the terms ofthe policy.

See BP Air Conditioning Corp. v. One Beacon Ins., 871 N.E.2d 1128, 1131 (N.Y.

2007); Fitzpatrick v. Am. Honda Motor Co., 575 N.E.2d 90, 91-92 (N.Y. 1991).

An insurance policy must be read as a whole in order to determine “its purpose

and effect and the apparent intent of the parties.” See Murray Oil Prods., Inc.

v. Royal Exch. Assurance Co., 235 N.E.2d 762, 764 (N.Y. 1968). When the terms

of the policy are clear and unambiguous, they should be given their “plain and

ordinary meaning.” Teichman v. Cmty. Hosp. of W. Suffolk, 663 N.E.2d 628, 630

(N.Y. 1996). In New York, “it is well settled that an insurer’s duty to defend [its

insured] is exceedingly broad and an insurer will be called upon to provide a

defense whenever the allegations of the complaint suggest . . . a reasonable
No. 12-30651

3

Internal quotation marks have been omitted from quotations of the policy throughout

this opinion. 

8

possibility of coverage.” BP Air Conditioning, 871 N.E.2d at 1131 (alterations in

original) (internal quotation marks omitted). If a complaint “contains any facts

or allegations which bring the claim even potentially within the protection

purchased, the insurer is obligated to defend.” Id. (quoting Technicon Elecs.

Corp. v. Amer. Home Assurance Co., 74 N.Y.2d 66, 73 (N.Y. 1989)); see

Fitzpatrick, 575 N.E.2d at 92. Finally, “If any of the claims against the insured

arguably arise from covered events, the insurer is required to defend the entire

action.”Frontier Insulation Contractors, Inc. v. Merchs. Mut. Ins. Co., 690 N.E.2d

866, 869 (N.Y. 1997). 

The policy states that it provides coverage for “Claims, remediation costs,

and associated legal defense expenses . . . as a result of a pollution condition” at

a covered location.3“Claim” in turn is defined as “the assertion of a legal right,

including but not limited to a government action(s), suits or other actions

alleging responsibility or liability on the part of the insured for. . . property

damage, or remediation costs as a result of pollution conditions to which this

insurance applies.” “Government action” is defined as “action taken or liability

imposed by any federal [or] state . . . government agency or body acting under

the authority of environmental laws.” The policy covers pollution conditions,

which it defines in relevant part as “the discharge, . . . dispersal, release, escape,

migration, or seepage of any . . . gaseous or thermal irritant, contaminant, or

pollutant . . . on, in, into, or upon. . . the atmosphere. . . .” “Property damage” is

defined to include, inter alia, “[n]atural resource damages,” which in turn is

expressly defined as including “injury to . . . air.” “Remediation costs” is defined

as “reasonable expenses incurred to investigate, quantify, monitor, mitigate,

abate, remove, dispose, treat, neutralize, or immobilize pollution conditions to

the extent required by environmental law.” 
No. 12-30651

9

Reading all of these provisions together and giving them their plain

meaning, the underlying EPA suit includes allegations and prayers for relief

that could potentially resultin covered remediation costs. Government agencies

acting under the authority of environmental laws allege that LaGen violated

those laws, resulting in increased emissions of pollutants into the atmosphere,

and seek to require LaGen to mitigate and remediate those emissions. The EPA

complaint clearly alleges a covered “pollution condition” at BCII when it asserts

that“significant amounts of NOx and SO2 pollution each year have been, and still

are being, released [from BCII] into the atmosphere.” The policy states that ILU

“agrees to pay . . . [c]laims, remediation costs, and associated legal defense

expenses” as a result of a pollution condition. “Claims” and “remediation costs”

are thus two bases for coverage under the policy. In addition, a covered “claim”

includes “government action(s) . . . alleging responsibility or liability on the part

of [LaGen] for. . . remediation costs as a result of” a pollution condition.

“Remediation costs” are thus unquestionably covered, whether they are the relief

sought by a claim or whether they are incurred independent of a claim, and ILU

agreed to pay “associated legal defense expenses” with regard to either situation.

“Remediation costs” are defined very broadly to include expenses incurred to

redress pollution in compliance with environmental law, including, inter alia,

costs associated with investigating, mitigating or abating pollution. This

language providing coverage for remediation costs potentially covers the

multiple prayers for relief in the EPA complaint which seek to require LaGen to

mitigate, offset and remediate the alleged past pollution, including the requests

thatthe court“[o]rder the defendantto surrender emission allowances or credits

to offset and mitigate the illegal emissions,” and “[o]rder the defendant to take

other appropriate actions to remedy, mitigate, and offset the harm to public

health and the environment caused by the violations of the Clean Air Act

alleged....” These requests for mitigation, offsetting and remediation suggest a
No. 12-30651

10

reasonable possibility of coverage under the policy. See BP Air Conditioning,

871 N.E.2d at 1131. Because part of the suit is “potentially within the protection

purchased, the insurer is obligated to defend.” Id. (quoting Technicon Elecs.

Corp., 74 N.Y.2d at 73). 

At oral argument, counsel for LaGen clarified that LaGen was not

asserting that costs associated with installation of government mandated

equipment and other actions taken solely to bring the plant into compliance are

covered under the policy. However, contrary to ILU’s arguments, installation of

the required equipment and application for the required CAA permits are not

the only relief sought by the EPA, nor are they the only relief that could

eventually be ordered by a court to remediate, offset or mitigate the past

emissions. In addition to and distinct from installation of equipment and

application for permits, part of what the EPA complaint seeks is remediation of

past pollution, and under the clear definitions in the policy, costs associated with

that remediation could be covered by the policy. At oral argument, counsel for

ILU conceded that if LaGen engaged in voluntary action to remediate past

pollution, those costs would be covered by the terms ofthe policy. Nothing in the

plain language of the policy provides that those same costs are not covered if

they are done as a result of a lawsuit filed by a government enforcement agency.

C. Coverage for Injunctive Relief

We also reject ILU’s argument that injunctive relief is excluded from

coverage by the Fines and Penalties exclusion. The Fines and Penalties

provision excludes coverage for “Payment of criminal fines, criminal penalties,

punitive, exemplary or injunctive relief.” ILU argues that any costs associated

with injunctive relief ordered by a court in the underlying EPA suit are excluded

by the reference to “injunctive relief.” LaGen argues that in construing the term

“injunctive relief,” the term must be read according to the rule that “a series of
No. 12-30651

11

specific words describing things or concepts of a particular sort are used to

explain the meaning of a general one in the same series.” See 242-44 E. 77th St.,

LLC v. Greater New York Mut. Ins. Co., 815 N.Y.S.2d 507, 510 (N.Y. App. Div.

2006) (quoting Matter of Riefberg, 58 N.Y.2d 134, 141 (N.Y. 1983)); Metro. Life

Ins. Co. v. Noble Lowndes Int’l, Inc., 84 N.Y.2d 430, 438 (N.Y. 1994) (applying

this canon of construction to an exclusion in an insurance policy). Read in

context, LaGen argues thatthe exclusion covers only types of reliefthat are akin

to punitive fines and penalties, and cannot exclude coverage for all injunctive

relief.

Under New York law, “policy exclusions are given a strict and narrow

construction, with any ambiguity resolved against the insurer.” Belt Painting

Corp. v. TIG Ins. Co., 795 N.E.2d 15, 17 (N.Y. 2003). “To negate coverage by

virtue of an exclusion, an insurer must establish that the exclusion is stated in

clear and unmistakable language, is subject to no other reasonable

interpretation, and applies in the particular case.” Cont’l Cas. Co. v. Rapid-Am.

Corp., 609 N.E.2d 506, 512 (N.Y. 1993); Belt Painting Corp., 795 N.E.2d at 17;

see Frontier Insulation, 690 N.E.2d at 868-69 (noting that insurer bears “heavy

burden” in negating coverage by an exclusion); Throgs Neck Bagels, Inc. v. GA

Ins. Co. of N.Y., 671 N.Y.S.2d 66, 71 (N.Y. App. Div. 1998) (holding that to

negate coverage under an exclusion, insurer must show that its construction is

the “only construction that [could] fairly be placed thereon”). Further, an

insurer may not construe a policy exclusion in a way that would “render the

underlying coverage nugatory in a host of cases where it would reasonably be

expected to apply.” Throgs Neck Bagels, 671 N.Y.S.2d at 70.

Applying these standards, ILU cannot show that its interpretation of the

exclusion is the only possible reasonable construction, as it must do to negate

coverage. See Cont’l Cas. Co., 609 N.E.2d at 512. Reading the policy as a whole,

including construing the exclusion narrowly, see BeltPainting Corp., 795 N.E.2d
No. 12-30651

12

at 17, LaGen’s interpretation of the Fines and Penalties exclusion as applying

only to criminal and punitive fines and penalties is a reasonable reading of the

exclusion. Conversely, under ILU’s interpretation, the policy would illogically

provide coverage for “remediation costs” but would exclude coverage if that

remediation is required by a court order. Further, the term “environmental law”

is defined in the policy as including not only “any federal, state, [or] local laws”

governing liability for pollution, but also expressly includes “governmental,

judicial or administrative orders . . . governing the liability or responsibilities of

the insured with respect to pollution conditions.” The policy, then, expressly

provides that it covers remediation costs to mitigate pollution conditions to the

extent required by judicial and administrative orders. ILU’s interpretation of

the “injunctive relief” language of the exclusion as excluding costs associated

with all injunctive relief clearly and directly conflicts with these basic, express

terms of the policy. 

Further, iftheFines andPenalties exclusion is a complete bar for coverage

of costs associated with injunctive relief, the exception would potentially swallow

the coverage afforded by the policy. The policy would not cover claims under

major federal environmental statutes, such as the CAA and the Clean Water Act,

when they are being enforced by the EPA or state agencies seeking injunctive

relief to mitigate and remediate past pollution. Again, in New York, an insurer

may not construe a policy exclusion in a way that would “render the underlying

coverage nugatory in a host of cases where it would reasonably be expected to

apply.” Throgs Neck Bagels, 671 N.Y.S.2d at 70. Under ILU’s interpretation of

the Fines and Penalties exclusion, the policy would provide little coverage for

some of the major types of environmental law liability that a reasonable

policyholder would expect; thus, it must be rejected. See Thomas J. Lipton, Inc.

v. Liberty Mut. Ins. Co., 34 N.Y.2d 356, 361 (N.Y. 1974). The fact that the

remediation of past pollution sought by the EPA may result only in orders for
No. 12-30651

13

injunctive relief does not disturb our conclusion that the EPA’s claims in the

underlying suit could result in covered remediation costs.

D. The Timing of the Suit

Lastly, ILU argues that it has no duty to defend because the claims were

“first made” when the EPA firstissued the NOVs with regard to BCII, which was

before the effective date of the policy, rather than when the EPA filed suit. 

As we have said, when the terms of the policy are clear and unambiguous,

they should be given their plain meaning. Teichman, 663 N.E.2d at 630. The

policy language with regard to this issue is clear. The policy provides coverage

for claims or remediation costs as a result of pollution conditions “provided the

claim is first made, or the insured first discovers such pollution condition during

the policy period . . . .” The policy further states that, “Any pollution conditions

specifically referenced, or identified in documents listed, on the Schedule of

Known Conditions Endorsement are deemed to be first discovered during the

policy period.” It is not disputed that the NOVs concerning the pollution

condition at BCII were identified on the Schedule of Known Conditions

Endorsement. It is difficult to determine what the purpose of listing the NOVs

relating to BCII on the endorsement would be if not to include claims and

remediation costs relating to that known pollution condition within the policy’s

coverage. Thus, according to the plain language of the policy, the “pollution

condition” at BCII identified in the NOVs is “deemed to be first discovered

during the policy period” and potential remediation costs associated with that

pollution condition are covered by the policy.

E. Civil Penalties

The parties also dispute whether the CAA civil penalties sought by the

EPA are covered by the policy. The district court held that the civil penalties are

potentially covered and found a duty to defend partly on that basis. ILU argues

that civil penalties, like punitive damages, cannot be indemnified under New
No. 12-30651

14

York law as a matter of public policy. LaGen argues first that Louisiana law

applies to this question, and second that civil penalties are insurable under New

York law. 

Because ofthe express choice of law provision in the policy, which provides

that “All matters arising hereunder relating to the validity, interpretation,

performance, and enforcement of this Policy shall be determined in accordance

with the law and practices of the State of New York,” we find that this issue is

governed by New York law. We are not persuaded by LaGen’s argument that

the language found in theFines andPenalties exclusion, which provides thatthe

exclusion “will not apply to coverage for punitive damages where such coverage

is allowable by law” is a separate choice of law provision governing punitive

damages. The state cases cited by LaGen in support of this proposition did not

involve a general express choice of law provision, as the contract at issue does,

and are thus inapposite. See Int’l Surplus Lines Ins. Co. v. Pioneer Life Ins. Co.

of Illinois, 568 N.E.2d 9, 12 (Ill. 1990) (also noting that the relevant language

was “not contained”in an exclusion, but was included in a separate endorsement

extending the policy to punitive damages); UnitedStates Gypsum Co. v. Admiral

Ins. Co., 643 N.E.2d 1226, 1250-51 (Ill. Ct. App. 1994) (adopting the holding of

Int’l Surplus Lines). 

However, whether civil penalties can be indemnified by insurance appears

to be an unsettled question of New York state law. The New York Court of

Appeals has recognized “the continuing and unabated force of our public policy

precluding indemnification for punitive damages. . . .” Zurich Ins. Co. v.

Shearson Lehman Hutton, Inc., 84 N.Y.2d 309, 319 (N.Y. 1994). It is not clear

whether New York law would distinguish between punitive damages and CAA

civil penalties in this context. See State v. Travelers Indem. Co. of Rhode Island,

508 N.Y.S.2d 698, 701 (N.Y. App. Div. 1986) (distinguishing civil penalties and

strict liability damages from punitive damages); Zurich Ins. Co., 84 N.Y.2d at
No. 12-30651

15

316-17 (defining when New York considers damages to be “punitive”); State v.

INA Underwriters Ins. Co., 507 N.Y.S.2d 112, 115 (N.Y. Sup. Ct. 1986) (noting

that an insurer could not be directly liable for civil penalties under New York oil

spill law, but might be liable for indemnification according to the terms of an

insurance policy). 

We have already held that there is a duty to defend because the EPA’s

and LDEQ’s claims may potentially result in covered remediation costs. New

York law provides that if any claim in an action is potentially covered, the

insurer must defend the entire suit. See Frontier Insulation, 690 N.E.2d at 869.

Because we find that ILU has a duty to defend on other grounds, we decline to

decide on interlocutory appeal whether New York law allows indemnification for

CAA civil penalties.

III. Conclusion

For the above-stated reasons, we AFFIRM the district court’s holding that

under the policy ILU has a duty to defend LaGen in the underlying EPA and

LDEQ suit and REMAND for further proceedings consistent with this opinion.

ILU’s motion to dismiss LaGen’s cross-appeal is DENIED as moot.