August 12,2014
The US 9th District Court of Appeals ruled August 12 in favor of environmental groups’ petition and against the EPA in the matter of a Kings County, 600 megawatt natural gas-fired power plant. The court said EPA could not approve the project using old air quality standards even though it was approved prior to the new standards taking effect.
The $600 million power plant called Avenal Power Center LLC has been in the works since 2008 but has been opposed at every permitting level by groups including the Sierra Club, Greenaction,Center On Race & Poverty and Earth Justice.
Located just east of Highway 5 in the City of Avenal the owners of the project feared they would lose lose their place in a long term queue to connect to the power grid and start approvals all over as litigation has dragged on – something that now appears to have come true. In fact this could be the death knell to the deal in a state that now wants to emphasize renewable energy projects.
The panel held that the EPA exceeded its authority under the Clean Air Act. The panel applied Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984), analysis, and held that the Clean Air Act unambiguously required Avenal Power to demonstrate that the Avenal Energy Project complied with the regulations in effect at the time the Permit was issued. The panel further held that because Congress had directly spoken on the issue, the EPA could not waive this requirement. The panel remanded for further proceedings meaning the project is back in front of the EPA if they want to continue the battle.
The court said they sympathize with Avenal Power Center noting that “Finally, EPA relies heavily on the argument that the equities weigh in favor of Avenal Power. In short, we agree. Avenal Power filed its application over six years ago, and endeavored to work with EPA for years, even after filing suit, to obtain a final decision. But however regrettable EPA’s treatment of Avenal Power has been, we simply cannot disregard the plain language of the Clean Air Act…”
Pollution Fears
The court cited testimony of Avenal area residents to make the case.”Marciela Mares-Alatorre, the leader of El Pueblo para el Aire y Agua Limpio, lives in Kettleman City, which is located approximately 10 miles from the site of the Avenal Energy Project. She was recently diagnosed with breathing difficulty and symptoms that indicate asthma, problems she avers are exacerbated when the air is more polluted. She fears that the pollution expected from the Avenal Energy Project will impair her health. Likewise, Mavi Sandoval, a member of El Pueblo para el Aire y Agua Limpio, as well as Center for Biological Diversity, lives in Kettleman City, works in Avenal, and states that she is concerned that her respiratory problems will also be exacerbated by pollution from the proposed plant. Maria Saucedo, a member of Greenaction for Health and Environmental Justice, lives in Avenal and avers that her husband and daughter suffer from serious respiratory problems associated with air pollution. She believes that air pollution created by the proposed facility may further jeopardize the health of her family, and impact her husband’s ability to work. These health threats are credible, concrete, and, assuming the Project goes forward, imminent…”
