Wild Equity Inst. v. U.S. Envtl. Prot. Agency

Decision Date20 November 2015
Docket NumberCase No. 15-cv-2461-PJH
Citation147 F.Supp.3d 853
CourtU.S. District Court — Northern District of California
Parties Wild Equity Institute, Plaintiff, v. United States Environmental Protection Agency, Defendant.

Matt Gilbert Kenna, Public Interest Environmental Law, Durango, CO, Brent Plater, San Francisco, CA, for Plaintiff.

Bridget Kennedy McNeil, United States Department of Justice, Denver, CO, for Defendant.

ORDER GRANTING MOTION TO DISMISS

PHYLLIS J. HAMILTON

, United States District Judge

Defendant's motion for an order dismissing the complaint for lack of subject matter jurisdiction and failure to state a claim came on for hearing before this court on October 21, 2015. Plaintiff appeared by its counsel Brent Plater, and defendant appeared by its counsel Bridget McNeil and Julie Walters. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, the court hereby GRANTS the motion.

INTRODUCTION

Plaintiff Wild Equity Institute (Wild Equity), a non-profit environmental group, bought this action against the United States Environmental Protection Agency (EPA), asserting a claim under § 7 of the Endangered Species Act, 16 U.S.C. § 1536

. Wild Equity alleges that emissions from a power plant in Contra Costa County endanger the continued existence of the Lange's metalmark butterfly, the Antioch Dunes evening primrose, and the Contra Costa wallflower (“the Listed Species”), each of which is endemic to the Antioch Dunes National Wildlife Refuge (“Antioch Dunes NWR”).

STATUTORY BACKGROUND
A. The Endangered Species Act

The Endangered Species Act (“ESA”) provides for the listing of species as threatened or endangered. 16 U.S.C. § 1533

. Section 7(a)(2) of the ESA requires federal agencies such as the EPA to

insure that any action authorized, funded, or carried out by such agency (hereinafter...referred to as an “agency action”) is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary...to be critical.

16 U.S.C. § 1536(a)(2)

. An agency is required to consult with either the United States Fish and Wildlife Service (“FWS”) or the National Marine Fisheries Service (collectively, “the Services”) whenever the agency takes action that “may affect” listed species or their habitats. 16 U.S.C. § 1536(a)(2) ; see also 50 C.F.R. § 402.14(a). Section 7 applies only to actions over which there is discretionary Federal involvement or control. 50 C.F.R. § 402.03.

The regulations promulgated under the ESA define “agency action” as follows:

Action means all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas. Examples include, but are not limited to: (a) actions intended to conserve listed species or their habitat; (b) the promulgation of regulations; (c) the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid; or (d) actions directly or indirectly causing modifications to the land, water, or air.

50 C.F.R. § 402.02

.

In considering whether there has been an “agency action,” courts in the Ninth Circuit employ a two-part test: “First, we ask whether a federal agency affirmatively authorized, funded, or carried out the underlying activity. Second, we determine whether the agency had some discretion to influence or change the activity for the benefit of a protected species.”

Karuk Tribe of Cal. v. U.S. Forest Serv. , 681 F.3d 1006, 1021 (9th Cir.2012)

(en banc).

If the agency determines that its action “may affect” endangered or threatened species or critical habitat, it must pursue either informal or formal consultation with one of the Services. See 50 C.F.R. §§ 402.13

-402.14. Formal consultation is required unless the agency determines, as a result of informal consultation with the Service, “that the proposed action is not likely to adversely affect any listed species or critical habitat.” Id. § 402.13(a). If formal consultation is required, the Service prepares a Biological Opinion stating whether the proposed action is likely to “jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.” Id. § 402.14(g). Thereafter, the agency must determine how to proceed with its action in light of the Service's Biological Opinion. Id. § 402.15.

The ESA's citizen suit provision authorizes any person to “commence a civil suit on his own behalf...to enjoin any person, including the United States and any other governmental instrumentality or agency...who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof.” 16 U.S.C. § 1540(g)(1)(A)

. The citizen suit provision also provides that district courts shall have jurisdiction...to enforce any such provision or regulation.” Id. § 1540(g).

B. The Clean Air Act1

Title I of the Clean Air Act is designed to ensure that air quality in the United States attains and maintains National Ambient National Ambient Air Quality Standards (“NAAQS”), which are health-based standards for the amount of air pollutant in the ambient air. 42 U.S.C. § 7409

. The New Source Review (“NSR”) program of the Clean Air Act divides the nation into “attainment” areas, which have attained NAAQS, and “non-attainment” areas, which have not attained the standards. 42 U.S.C. §§ 7470 -7515. The Act requires that all new major stationary sources obtain a preconstruction permit that complies with the Act's NSR requirements. 42 U.S.C. §§ 7470, 7475(a).

Areas designated as either “non-attainment” or “unclassifiable” are subject to requirements to bring them into attainment, including the non-attainment NSR permitting provisions. Id. §§ 7501-7515. Attainment areas, by contrast, are subject to the Prevention of Significant Deterioration (“PSD”) permitting provisions. See Alaska Dep't of Envtl. Conservation v. Envtl. Prot. Agency , 540 U.S. 461, 469–75, 124 S.Ct. 983, 157 L.Ed.2d 967 (2004)

.

States are encouraged to develop their own regulatory approaches for implementing the NSR and PSD programs. See United States v. Pac. Gas & Elec. , 776 F.Supp.2d 1007, 1012 (N.D.Cal.2011)

(“PG & E ”). Regulatory programs developed by the states, and known as “State Implementation Plans” (“SIPs”), are intended to satisfy the minimum requirements of the Clean Air Act. See generally 42 U.S.C. § 7410(a). A state's SIP “may not adopt or enforce any emission standard or limitation which is less stringent” than the Act's requirements. 42 U.S.C. § 7416. Each SIP is required to contain preconstruction permitting requirements for major stationary sources, including the PSD permitting requirements that apply in attainment and non-attainment areas. See 42 U.S.C. §§ 7410(a)(2)(C), 7470 -7515. PSD permits issued by states under approved SIPs are actions under state law. In re Milford Power Plant , 8 E.A.D. 670, 673, 1999 WL 1120154 at *3-4 (EAB Oct. 18, 1999)

.

California has adopted the SIP approach in the San Francisco Bay Area with respect to the non-attainment NSR program of the Clean Air Act, but not with respect to the attainment area PSD program. See PG & E , 776 F.Supp. 2d at 1021

. For non-attainment NSR, the Bay Area Air Quality Management District (“BAAQMD”), an agency with jurisdiction in the nine Bay Area counties, see Cal. Health & Saf. Code §§ 40200 -40276, has adopted regulations and has had those regulations approved by the EPA. See 64 Fed. Reg. 3850 (Jan. 26, 1999), 40 C.F.R. §§ 52.21, 52.22(c)(199)(i)(A)(8). These “SIP-approved” non-attainment NSR regulations are set forth in BAAQMD Regulation 2, Rule 2.

As California has not adopted its own regulatory system to implement the Clean Air Act's PSD requirements in the Bay Area, PSD permitting is governed by federal regulations which are codified at 40 C.F.R. § 52.21

, and which incorporate the procedural regulations at 40 C.F.R. Part 124. These regulations provide for the EPA to delegate its authority to conduct PSD source review and issue PSD permits. See 40 C.F.R. 52.21(u). Where such a delegation occurs, the PSD permits issued by the delegate agency remain federal and, as described below, are subject to EPA's regulations governing administrative appeals and exhaustion of administrative remedies. The delegate agency is simply authorized to issue the permits under federal law on EPA's behalf, rather than issuing PSD permits under state law as in a state with an approved PSD program in its SIP. Milford Power , 8 E.A.D. at 673-74.

On April 23, 1986, the EPA delegated to BAAQMD the “authority of the administrative and enforcement elements” of the federal PSD program's implementing regulations, subject to the terms, conditions and reservations of authority set forth in that agreement. PG & E , 776 F.Supp.2d at 1012

. BAAQMD also implements a separate SIP-approved Clean Air Act program under state and local law, pursuant to which it issues preconstruction or “Authority to Construct” (“ATC”) permits, to implement the Clean Air Act non-attainment NSR program. Id. Although BAAQMD implements these programs in parallel, the PSD and ATC requirements are distinct, with the latter being implemented under state and local law and the former under federal law.

Under the PSD permitting program, new proposed major sources of pollution must obtain a permit before construction. See 42 U.S.C. §§ 7470

–7492. A PSD permit must be supported by an air quality impact analysis that shows that the increased emissions will not cause or contribute to an exceedance of the NAAQS or air quality increments in the area. See 42 U.S.C. § 7475(a)(3). In addition, PSD applicants must show they will apply the Best Available Control Technology (“BACT”) to minimize pollution. See 42 U.S.C. §§ 7475(a)(4), 7479(3).

Under federal regulations, PSD permits expire when 18 months elapse from the time of issuance...

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