A challenge to a large power plant in western Riverside County has been rejected by the Ninth U.S. Circuit Court of Appeals, which ruled that the plaintiffs could not contest the project in federal district court.
Romoland School District, two environmental justice groups, a collection of labor unions and two residents sued the Inland Empire Energy Center (a subsidiary of General Electric) and the South Coast Air Quality Management District to block the 810-megawatt, gas-fired power plant in an unincorporated area south of Perris. The project won approval as a 670-megawatt plant from the air district and the California Energy Commission in 2003. The Commission in 2005 approved a modified project that increased power output to 810 megawatts through the use of better turbines.
In April 2006, the school district and other project proponents filed suit in U.S. District Court for the Central District of California. They argued the power plant violated the Clean Air Act's "new source review" provisions because the project received emissions credits for which it was not eligible, and because the plant would emit more fine particulate matter than permitted by an air district rule. Their concern was that air pollution from the power plant could harm the health of children at Romoland Elementary School, located 1,100 feet from the project site. They sought an injunction to halt the project and civil penalties from Inland Empire Energy Center (IEEC) and the air district.
District Court Judge Ronald Lew rejected the requested preliminary injunction and in August 2006 dismissed the two causes of action against the IEEC. Later that year, District Judge Andrew Guilford dismissed the two causes of action against the air district at the request of the plaintiffs, who wanted to move to the appellate court level.
The primary issue at the Ninth Circuit was whether the district court could consider the legal challenge, as Judge Lew dismissed the case for lack of jurisdiction. The plaintiffs argued their suit was brought under the citizen suit provisions of the Clean Air Act's Title I, which concerns new source reviews and other preconstruction requirements. However, the IEEC and South Coast argued the suit was really a challenge under Title V, which concerns permitting schemes such as the one the air district employed here. The two different portions of the Clean Air Act provide different avenues to court. Challenging a permit issued according to Title V requires an appeal to the Environmental Protection Agency administrator, and then judicial review beginning at the circuit court level. The plaintiffs in this case had a Title V challenge that the district court properly dismissed, the Ninth Circuit determined.
"We do not opine upon the general contours or scope of the citizen suit provision of 42 U.S.C. 7604," Judge Ronald Gould wrote for the three-judge Ninth Circuit panel, referring to a portion of the Clean Air Act. "We hold only that where a state or local air pollution control district has integrated preconstruction requirements of Title I within the permitting requirements of Title V and a permit is issued under that integrated system, a claim that the terms of that permit are inconsistent with other requirements of the Clean Air Act may only be brought in accordance with the judicial review procedures authorized by Title V of that Act, 42 U.S.C. § 7661-7661f, and may not be brought in federal district court under the Act's citizen suit provisions, 42 U.S.C. § 7604. Because plaintiffs' action was brought in an inappropriate forum under an inapplicable CAA [Clean Air Act] provision in an untimely avenue of protest, the district court was without jurisdiction to hear it."
In a concurring opinion, Judge J. Clifford Wallace wrote that he agreed with the outcome of the case but said the Ninth Circuit should not have considered the appeal because the plaintiffs voluntarily dismissed their case against the air district.
Construction of the power plant finished last year and the plant is now in the testing stage.
The Case: Romoland School District v. Inland Empire Energy Center, LLC, No. 08 C.D.O.S. 14167, 2008 DJDAR 17047. Filed November 18, 2008. The Lawyers: For Romoland: Suma Peesapati, Adams, Broadwell, Joseph & Cardozo, (650) 589-1660. For IEEC: Robert Wyman, Latham & Watkins, (213) 485-1234. For South Coast Air Quality Management District: Bradley Hogin, Woodruff, Spradlin & Smart, (714) 558-7000.
Since the passage of the Clean Water Act in 1972, when the Environmental Protection Agency told a property owner to jump, in some cases the property owner's only possible response was "how high?" No so anymore.
Last month, in Sackett vs. Environmental Protection Agency, the United States Supreme Court issued a ruling that places a limitation on how far the EPA can go to compel property owners to comply with the Clean Water Act.
WASHINGTON – The Supreme Court has given power plant operators in California and around the nation an important victory by upholding the Environmental Protection Agency's power to use cost-benefit analyses in deciding whether to require expensive retrofitting to minimize fish-kills.
Environmental groups, however, say they hope the Obama administration EPA will shift policy and take a stricter view of what existing power plants must do to reduce the impact on aquatic life from using ocean or river waters to cool the facilities.
WASHINGTON – Industry and environmental groups in California are awaiting a ruling from the U.S. Supreme Court that could determine how far the state's coastal power plants must go to reduce their fish-killing intake of ocean waters used to cool generating facilities.
The Environmental Protection Agency has until December 1, 2009, to promulgate standards for runoff from construction sites. The deadline is contained in a 2006 federal district court ruling that the Ninth U.S. Circuit Court of Appeals recently upheld.
A federal judge's ruling blocking development of a controversial condominium project on the shore of Big Bear Lake has been thrown out by the Ninth U.S. Circuit Court of Appeals.
The Ninth Circuit ruled that the district court had no jurisdiction to consider alleged Clean Water Act violations because environmental groups' notices to the developer regarding potential violations of the act were inadequate and federal agencies were already forcing corrective action. The Ninth Circuit further rejected alleged violations of the Endangered Species Act as both bogus and moot.
WASHINGTON _ Home builders are hoping that the U.S. Supreme Court will overturn a Ninth U.S. Circuit Court of Appeals decision that could broaden the impact of the federal Endangered Species Act on residential and commercial construction.
An environmental impact report for a 560-housing unit specific plan in the Riverside County city of Beaumont has been upheld by the Fourth District Court of Appeal. The court approved the city's use of a baseline for examining water usage that was favorable to the developer, accepted the city's determination that loss of farmland could not be mitigated, and upheld the city's statement of overriding consideration for approving a project with significant environmental impacts.
An appellate court has struck down a Riverside County assessment for park maintenance because the county failed to distinguish between general benefits and parcel-specific benefits provided in return for the assessments, as required by Proposition 218.
"The County failed to meet its constitutional burden of demonstrating that the assessment was proportional to, and did not exceed, the value of the special benefits that the use and enjoyment of the parks would confer on assessed parcels," the Fourth District Court of Appeal concluded.
The Ninth U.S. Circuit Court of Appeals has set back a plan to develop the country's largest solid waste landfill near Joshua Tree National Park. The court ruled that the environmental analysis for the project was inadequate and that the Bureau of Land Management undervalued land it would provide to the landfill developer.
Approval of an 88-acre warehouse distribution facility at March Air Reserve Base was exempt from environmental review because the project was included in a general plan and a specific plan, both of which received environmental analysis, the Fourth District Court of Appeal has ruled.