Ninth Circuit Denies Review of Air Permit


[author: Harmon Cooper]

The Ninth Circuit Court of Appeals in May rejected a California community district’s attempt to review an air permit that was issued to a 600-megawatt, natural gas-fired power plant that was being constructed a mile and a half from the college’s campus in Hayward, Calif., Chabot-Las Positas Community College District v. EPA, No. 10-73870, (9th Cir. May 4, 2012).  While the plant has been lauded as the first in the nation with voluntary greenhouse gas restrictions, the Chabot Community College District had complained that the new power plant would emit pollutants that would be detrimental to its students and the community.  The Ninth Circuit determined that the college lacked standing to raise these challenges.


On appeal from an Environmental Appeals Board (EAB) decision, which approved the issuance of a Prevention of Significant Deterioration (PSD) air permit by the California Bay Area Air Quality Management District (air district) to the plant, the college alleged that the air district erred by declining to regulate the criteria pollutant 24-hour particulate matter (PM-2.5) and acted arbitrarily in failing to require a boiler as Best Available Control Technology (BACT).  In addition, the college argued that the Environmental Protection Agency (EPA) failed to satisfy its obligations under the Endangered Species Act (ESA) and the Coastal Zone Management Act (CZMA).


The EPA and the plant’s owner, on the other hand, characterized these claims as meritless and argued that the college lacked standing to bring them.


In the end, the Ninth Circuit concluded that the college had standing to challenge the air district’s refusal to regulate PM-2.5, given that the college alleged both economic and proprietary injuries that would occur as a result of the PM-2.5 emissions from the Russell City Energy Company, LLC.  The court, however, held that the college lacked standing to challenge the air district’s BACT determination and the ESA and CZMA claims.


Regarding the merits of the PM-2.5 claim, the air district originally decided not to regulate the pollutant, considering that the EPA reclassified PM-2.5 as nonattainment for the Bay Area.  The Ninth Circuit agreed with the air district, stating that the decision was in line with well-established precedent holding that the PSD permitting program applied only to new major sources of pollutants that are in “attainment” or are unclassifiable. Since the EPA classified PM-2.5 as nonattainment, the permitting program did not apply to it.  Thus, the court held that the EAB did not err in affirming the air district’s decision not to regulate PM-2.5, and, as a result, the court dismissed as moot the college’s substantive challenges to the air district’s air-quality analysis of PM-2.5.


Absent further review of the Ninth Circuit’s rejection of the college’s petition for review of the air permit, the plant will proceed to go online in 2013.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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