Border Power Plant Working v. Department of Energy

• Decision Date: 30 November 2006
• Docket Number: No. 02CV0513-IEGPOR.,02CV0513-IEGPOR.
• Citation: 467 F.Supp.2d 1040
• Parties: BORDER POWER PLANT WORKING GROUP, Plaintiff, v. DEPARTMENT OF ENERGY; Samuel W. Bodman, in his official capacity; Kevin Kolevar, in his official capatity; Bureau of Land Management; Rebecca W. Watson, in her official capacity, Defendants, v. TERMOELECTRICA U.S., LLC; Baja California Power, Inc., Defendant-Intervenors.
• Court: U.S. District Court — Southern District of California

467 F.Supp.2d 1040

BORDER POWER PLANT WORKING GROUP, Plaintiff, v. DEPARTMENT OF ENERGY; Samuel W. Bodman, in his official capacity; Kevin Kolevar, in his official capatity; Bureau of Land Management; Rebecca W. Watson, in her official capacity, Defendants, v. TERMOELECTRICA U.S., LLC; Baja California Power, Inc., Defendant-Intervenors.

No. 02CV0513-IEGPOR.

United States District Court, S.D. California.

November 30, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John Martin Wagner, Earthjustice, Oakland, CA, Julia A. Olson, Wild Earth Advocates, Eugene, OR, for Border Power Plant Working Group, Plaintiff.

U.S. Attorney CV, U.S. Attorneys Office Southern District of California, Civil Division, San Diego, CA, Andrew A. Smith, U.S. Department of Justice Environment and Natural Resources, Albuquerque, NM, Brian C. Toth, United States Department of Justice Environment and Natural Resources Div., Washington, DC, for Department of Energy, Carl Michael Smith in his official capacity, Anthony J. Como in his official capacity, Spencer Abraham in his official capacity, Bureau of Land Management, Defendants.

Amy G. Nefouse, Latham and Watkins, Christopher W. Garrett, Latham and Watkins, San Diego, CA, Janice M. Schneider, Latham and Watkins, Washington, DC, for Termoelectrica U.S. LLC, Intervenor Defendant.

Order (1) Denying Plaintiff's Motion for Summary Judgment; (2) Granting Federal Defendants' Cross—Motion for Summary Judgment, (3) Granting Defendant—Intervenor Termoelectrica U.S.'s Cross-Motion for Summary Judgment, (4) Granting Defendant-Intervenor Baja California Power's Cross-Motion for Summary Judgment, (5) Granting in Part, Denying in Part All Defendants' Motions To Strike the First Declaration of William E. Powers, (6) Granting in Part, Denying in Part Plaintiff's Motion To Strike the Declaration of Octavio M.C. Simoes, (7) Granting in Part Denying in Part All Defendants' Motions To Strike the Second Declaration of William E. Powers, (8) Denying Defendant-Intervenor Termoeleetrica U.S.'s Motion To Voir Dire William E. Powers, and (49) Denying as Moot All Defendants' Motions To Strike the Declaration of Theodore D. Schade

GONZALEZ, Chief Judge.

Presently before the Court are cross-motions for summary judgment filed by the Border Power Plant Working Group ("plaintiff'); Department of Energy, Bureau of Land Management, and agency officials ("federal defendants"); defendant-intervenor Termoelectrica U.S., LLC ("T-US"); and defendant-intervenor Baja California Power, Inc. ("Baja"). Also presently before the Court are the following evidentiary motions: defendants' motions to strike the first and second declarations of William E. Powers, and the declaration of Theodore D. Schade; T-US's motion to voir dire William E. Powers; and plaintiff's motion to strike the declaration of Octavio. M.C. Simoes.

BACKGROUND¹

I. Factual and Procedural History of the Prior Litigation

The Department of Energy ("DOE") is responsible for issuing Presidential permits for the construction, operation, maintenance, and connection of electric transmission facilities at the United States international border. [D-1076, at 2; D-1077, at 2.²] On February 27, 2001, Baja applied to DOE for a Presidential permit to construct a 230-kV transmission line extending from San Diego Gas & Electric Company's Imperial Valley Substation to the U.S.-Mexico border. [D-1077, at 2.] There, the line would connect with transmission facilities in Mexico and extend to the La Rosita Power Complex in Mexicali. [Id.]

On March 7, 2001, Sempra Energy Resources ("SER") applied to DOE for a Presidential permit to construct a 230-kV transmission line that would run parallel to the Baja line. [D-1076, at 2.] At the border, the line would connect with transmission facilities in Mexico and extend to the Termoelectrica de Mexicali power plant.³ The primary purpose of both transmission lines is the importation of power into the United States. [DOE-101, at 13.]

Because of the similarity in the proposals, DOE decided to consider both transmission lines in a single environmental document. [D-1077, at 3.] DOE and BLM (collectively, "agencies") concluded that an environmental assessment ("EA") was the appropriate level of review under the National Environmental Policy Act ("NEPA"). [Id.] On December 1, 2001, the agencies completed the EA, and, based on that document, made a finding of no significant impact ("FONSI"). [DOE-101, DOE-103.] DOE issued the permits on December 5, 2001: [DOE-104, DOE-105.] SER and Baja then began constructing the transmission lines, which commenced operation to export electricity from Mexico in July 2003. [Final Environmental Impact Statement ("FEIS"), Vol. 1, at 1-1.]

On March 19, 2002, plaintiff filed its complaint against DOE, BLM, and agency officials challenging the EA and FONSI. [Doc. No. 1, at 2.] Plaintiff alleged causes of action under NEPA for DOE's failure to prepare an environmental impact statement ("EIS") or to analyze reasonable alternatives. [Id., at 16-19.] The Court granted SER's and Baja's motions to, intervene with respect to the remedy phase. [Doc. Nos. 18, 32.] On January 30, 2003, the Court ordered the substitution of T&-US for SER.⁴ [Doc. No. 42.]

On May 2, 2003, applying the "arbitrary and capricious" standard of review under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A), this Court partially granted plaintiff's motion for summary judgment as to the EA and FONSI's inadequate analysis on the issues of the potential for controversy, water impacts, impacts of ammonia and carbon dioxide, reasonable alternatives, and cumulative impacts. [Doc. No. 91, at 40.] After denying plaintiff's motion for injunctive relief [Doc. No. 124], the Court remanded to the, agencies for preparation of appropriate NEPA documents on July 9, 2003. [Doc. No. 162, at 34.] The Court prohibited the agencies from considering on remand the completion of the transmission lines' construction, their interim operation, or the Court's analysis of the environmental impacts. [Id.]

II. Factual and Procedural History of the Present Litigation

On October 24, 2003, DOE issued a Notice of Intent to prepare an EIS. [D-0059, at 1.] Pursuant to the Court's remand Order, the agencies "conduct[ed] their NEPA review from a fresh slate, i.e., as if the transmission lines did not exist." [Id., at 8.] On May 11, 2004, DOE published notice in the Federal Register that the Draft EIS was available. [D-0702.] DOE originally provided .a forty-five day period to comment on the Draft EIS, and extended the comment period by one month at plaintiff's request. [D-0717, at 1.]

On December 10, 2004, the agencies issued the FEIS and filed it with the Environmental Protection Agency. [Fed. Defs. Memo. ISO Motion, at 3; D-1069, at 1.] The FEIS contained a separate volume of comments received during the review period-including the transcripts of two public hearings-along with DOE's responses to those comments. [See FEIS Vol. 2.] On April 18, 2005, DOE issued new permits to Baja and T-US. [D-1076; D-1077.]

On April 25, 2005, DOE published the ROD in the Federal Register. [D-1085.] The ROD explained what alternatives DOE had considered: (1) no action; (2) granting one or both permits with corresponding right(s)-of-way, based on the current design of the Mexicali power plants ("proposed action"); (3) granting one or both permits with corresponding right(s)of-way, with more stringent emissions controls and alternative cooling technologies installed at the Mexicali power plants; and (4) granting one or both permits with corresponding right(s)-of-way, with off-site mitigation measures implemented to minimize domestic environmental impacts. [Id., at 3.] On May 27, 2005, the federal defendants notified the Court that the agencies had completed the FEIS and issued new RODs. [Doc. No. 179.]

On August 18, 2005, pursuant to the parties' stipulation, the Court ordered the filing of plaintiff's first amended complaint ("FAC"). [Doc. No. 181, at 4.] The FAC alleges six (6) causes of action: one under the Clean Air Act ("CAA"), four under NEPA, and one under the APA.

The first cause of action alleges that, based on data in the FE IS, the total number of direct and indirect emissions of pollutants in Imperial County caused by DOE's permitting actions exceeds regulatory thresholds. Therefore, plaintiff alleges the federal defendants violated the CAA by failing to conduct a conformity determination to ensure that the permits conform to California's state implementation plan for Imperial County.

In its opening brief, plaintiff voluntarily dismissed its second cause of action under NEPA for failure to ,evaluate cumulative impacts adequately.⁵ [Pl. Memo. ISO Motion, at 34 n. 23.]

The third cause of action alleges a NEPA violation for failure to evaluate alternatives adequately. Plaintiff specifically alleges DOE failed to evaluate adequately certain alternative technologies, such as wet-dry cooling, that would minimize adverse environmental impacts and still satisfy the purpose and need for the project. Although DOE included a section on alternative technologies in the FE IS, the analysis was so "skewed" by inaccurate information that the alternatives were "never fairly presented to the public or the decisionmakers." [FAC ¶ 42.] Also, when preparing the FEIS, DOE assumed the power plants were already built and operating. Plaintiff alleges this assumption violated the Court-ordered prohibition against the federal defendants' consideration of the interim operation of the transmission lines or the completion of construction. [Id. ¶ 41 (quoting Doc. No. 162, at 33).]

The fourth cause of action alleges a violation of NEPA regulations for failure to ensure the scientific accuracy of relied-upon information. Specifically, in recommending against retrofitting the Mexicali power plants with wet-dry cooling. technology, DOE failed to rely on high-quality data or accurate...