Border Power Plant Working v. Department of Energy
| Decision Date | 02 May 2003 |
| Docket Number | No. 02-CV-513-IEG.,02-CV-513-IEG. |
| Citation | 260 F.Supp.2d 997 |
| Court | U.S. District Court — Southern District of California |
| Parties | BORDER POWER PLANT WORKING GROUP, Plaintiff, v. DEPARTMENT OF ENERGY; Spencer Abraham, in his official capacity; Carl Michael Smith, in his official capacity; Anthony J. Como, in his official capacity; Bureau of Land Management, Defendants. |
Julia A. Olson, Wild Earth Advocates, Eugene, OR, Eric J. Murdock, Hunton and Williams, Washington, DC, for Plaintiff.
Andrew A. Smith, U.S. Department of Justice, Environment and Natural Resources, Albuquerque, NM, U.S. Attorney CV, U.S. Attorneys Office Southern District of California, Civil Division, San Diego, CA, Brian C. Toth, United States Department of Justice Environment and Natural Resources Div, Washington, DC, for Defendants.
Amy G. Nefouse, Latham and Watkins, San Diego, CA, Janice M. Schneider, Latham and Watkins, Washington, DC, for Intervenor-Defendant.
Andrea A. Matarazzo, Remy Thomas and Moose, Sacramento, CA, for Amicus.
Amy G. Nefouse, Latham and Watkins, San Diego, CA, Janice M. Schneider, Latham and Watkins, Washington, DC, for Movant.
Carey L. Cooper, Klinedinst Fliehman and McKillop, San Diego, CA, for Intervener.
ORDER (1) GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; (2) GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; (3) DENYING DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S DECLARATIONS; (4) DENYING DEFENDANTS' ORAL MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD; (5) GRANTING PLAINTIFF'S MOTION TO STRIKE SUPPLEMENTAL DECLARATION AND REQUEST FOR JUDICIAL NOTICE; and (6) SETTING BRIEFING SCHEDULE FOR THE REMEDY PHASE OF THE MOTIONS FOR SUMMARY JUDGMENT
Presently before the Court are crossmotions for summary judgement, federal defendants' motion to strike plaintiffs declarations, defendants' oral motion to supplement the record, and plaintiff Border Power Plant Working Group's motion to strike amicus Termoelectrica U.S.'s request for judicial notice and supplemental declaration. For the reasons discussed below, the Court denies in part and grants in part both motions for summary judgment, denies federal defendants' motions to strike and to supplement the record, and grants plaintiffs motion to strike.
This case involves two applications for Presidential Permits and federal rights-of-way to build electricity transmission lines within the United States and across the United States-Mexico border to connect new power plants in Mexico with the power grid in Southern California.
In February 2001, Baja California Power ("BCP"), a wholly-owned subsidiary of Intergen Aztec Energy ("Intergen"), applied to defendant U.S. Department of Energy ("DOE") for a Presidential Permit to construct and operate an electric power transmission line across the international border between the United States and Mexico near El Centro, California. (See Pla's Statement of Undisputed Facts ("PSUF") at ¶ 1; Defs' Statement of Undisputed Facts ("DSUF") at ¶ 2).2 In particular, the BCP transmission line will connect the Imperial Valley electric substation in Imperial County, California to a new power plant called the La Rosita Power Complex ("LRPC") under construction just west of Mexicali, Mexico. See DOE-33, 202165-202167, DOE-101, 204344.3 The connection will be made via another transmission line being constructed in Mexico by Energia de Baja California ("EBC"), a wholly-owned subsidiary of Intergen. See DOE-101 at 204320; DOE-33 at 202167; PSUF at ¶ 2. The LRPC is being built by EBC and another whollyowned subsidiary of Intergen, Energia Azteca X ("EAX"). DOE-33 at 202167; PSUF at ¶ 2. The LRPC will house four gas-fired combustion turbines. DOE-101 at 204320. EBC will own one of these turbines and EAX will own the remaining three. Id. Two of the EAX turbines, with a combined output of approximately 500 megawatts ("MW"), will provide power to Mexico, while the third EAX turbine and the single EBC turbine will export a combined, nominal4 560 MW of power to the United States. DOE-101 at 204320, 204402, 204404. However, the BCP transmission line will be able to transport power generated by any of the turbines at the LRPC. DOE-101 at 204320 n. 2 (). Each of the double circuit lines proposed by BCP would have a capacity of 600 MW. DOE-033 at 202168. The lines are to be constructed in two phases, with the second circuit only strung when business or economic circumstances make possible the expansion of the EBC facility, or to meet the additional transmission needs of the EAX turbines. Id. at 202167-212168.
The EBC turbine and the EAX export turbine utilize dry low-NOx (oxides of nitrogen) combustor technology and selective catalytic reduction ("SCR") technology that reduce NOx emissions to 4 parts per million ("ppm"). DOE-101 at 204402, 204404. Carbon Monoxide (CO) emissions from the EBC turbine and the EAX export turbine would be not be controlled and would emit at 30 ppm. DOE-101, 204404, 204321, 204344. Annual emissions from the EBC turbine and the EAX export turbine would be 282 tons of NO2 (nitrogen dioxide), 924 tons of CO, and 410 tons of PM-10 (particulate matter less than 10 microns in size). DOE-101 at 204401.
The administrative record does not suggest that the remaining two EAX turbines at the LRPC will be built with emissions control technology for NOx or CO. DOE-101 at 204321, 204344.5 Accordingly, these turbines will emit at 25 ppm for Nox and 30 ppm for CO. DOE-101, 204321. Annual emissions from these two EAX turbines would be 1,502 tons of NO2, 957 tons of CO, and 314 tons of PM-10. DOE-101 at 204401.
On March 1, 2001, Sempra Energy Resources (SER) filed an application for a Presidential permit to construct and operate a separate transmission line that would facilitate the transmission of electricity across the U.S.-Mexico border. See DOE-35 at 202186-202187. In particular, the SER application sought permission to build a line that would connect the Imperial Valley electric substation to the Termoelectrica de Mexicali ("TDM") power plant under construction near Mexicali, Mexico. DOE-35 at 202186-202187. The connection will be made via another transmission line being constructed in Mexico by TDM. DOE-35 at 202187. TDM is a wholly-owned subsidiary of Sempra Energy. DOE-35 at 202188. The TDM plant would export 100 percent of its net generating capacity to the United States. DOE-101 at 204344. The TDM facility consists of two gas-fired combustion turbines. DOE-101 at 204320. Although the TDM facility is only permitted by Mexican authorities to generate a nominal 500 MW, DOE-35 at 202188,6 SER indicated that it intended the possible second circuit of the transmission line to have the potential to export up to another nominal 500 MW. DOE-36 at 202196; DOE-35 at 202188.
The TDM facility would be equipped with emission control technology, including dry low-NOx combustor technology, SCR, and oxidizing catalyst systems, to reduce Nox and CO emissions. DOE-101 at 204402. The TDM facility would thus emit 2.5 ppm for NOx and 4.0 ppm for CO. DOE-101 at 204402, 204321. Based on 600 MW of energy output, the TDM facility would annually emit 170 tons of NOx, 165 tons of CO, and 216 tons of PM-10. DOE-101 at 204401.
Concentrations of pollutants at the U.S. Mexico border due to emissions from the TDM facility are predicted to increase as follows: NOx (annual) 0.09 µg/m3; CO (8hour) 2.16 µg/m3; PM-10 (hourly) 1.12 Sg/m3; PM-10 (annual) 0.11 µg/m3. DOE-101 at 204403. When combined with total emissions predicted from the entire LRPC, the concentrations of pollutants at the U.S./Mexico border are expected to rise as follows: NO2 (annual) 0.8 µg/m3; CO (1-hour) 70.0 µg/m3; CO (8-hour) 30.8 Sg/m3; PM-10 (24-hour) 4.5 µg/m3; P10 (annual) 0.3 µg/m3. DOE-101 at 204439.
After undertaking an environmental assessment of the applications for the Presidential Permits and the BLM rights-ofway, DOE and BLM each issued a Finding of No Significant Impact ("FONSI") in December 2001. DOE-103; BLM-182 (FONSI for BCP right-of-way); BLM-183 (FONSI for SER right-of-way). DOE issued Presidential Permits to BCP and SER on December 5, 2001. DOE-104 at 204612; DOE-105 at 204618. BLM granted a right-of-way to BCP that became effective on December 28, 2001, and another right-of-way to SER that became effective on December 31, 2001. BLM-189 at 102333; BLM-186 at 102290. The Presidential Permit and the right-of-way issued to SER were subsequently transferred to T-US, a subsidiary of Sempra Energy. DOE-125S at S24897; BLM-207S at S102612.
Plaintiff filed a motion for summary judgment, alleging various violations of the National Environmental Protection Act ("NEPA") and the Administrative Procedure Act ("APA") on January 31, 2003. The federal defendants filed a cross-motion for summary judgment and an opposition to plaintiffs motion on March 13, 2003. Amicus curiae briefs were filed by BCP, T-US, and Imperial County and City of El Centro. Plaintiff responded to the BCP and T-US briefs on April 4, 2003, and both plaintiff and the federal defendants replied to the other's opposition brief. The federal defendants have also moved separately to strike extra-record materials. Finally, plaintiffs moved to strike T-US's request for judicial notice and supplemental declaration.
Before reaching the merits of the case, the Court must first determine whether...
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