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Full Environmental Review Ordered for Mexican Power Imports

On February 8, 2006, a Federal judge in San Diego denied power companies' efforts to dismiss a precedent-setting Clean Air Act claim filed by Earthjustice on behalf of the Border Power Plants Working Group (BPPWG). The claim seeks an order requiring the US Department of Energy (DOE) to ensure that two energy import permits granted to the power companies conform to California's air quality management plan.

The Clean Air Act requires that if the emissions don't conform to that plan, the permit holders must reduce the emissions. Rejecting the companies' arguments, the judge ruled that the Clean Air Act applies even though the plants are located in Mexico, that DOE can control the emissions through permit conditions, and that DOE cannot avoid the Clean Air Act under a "foreign affairs" exception.

In the late 1990s, American companies built two power plants just over the border in Mexico. The idea was to generate and sell power to California consumers, and the location allowed the companies to avoid strict US pollution regulations. In issuing permits authorizing the import of power from the plants, DOE ignored the substantial air and water pollution they would create in the United States. In March 2002, attorneys in Earthjustice's International Program filed suit on behalf of BPPWG to force DOE to conduct a thorough assessment of these environmental impacts. In May 2003, the judge ruled that DOE did not adequately assess the health and environmental threats posed by the power plants, and ordered further analysis.

In December 2004, DOE issued a new, more detailed analysis, revealing that the power plants will emit hundreds of tons of air pollutants into the already-polluted air of Imperial County, California. Based on that information, Earthjustice filed a new claim against DOE in August 2005, this time seeking a court order requiring DOE to comply with the Clean Air Act's requirement that federal agencies ensure their actions don't undermine state efforts to meet air quality standards.

The US power companies asked the court to dismiss that claim in December 2005, arguing among other things that the Clean Air Act couldn’t apply because the power plant stacks are located in Mexico. In a victory for US air quality, and a precedent-setting Clean Air Act decision, the court saw through the companies’ arguments and held on February 8, 2006, that the location of the power plants is not relevant to determining whether DOE must ensure its actions don’t undermine Imperial County’s efforts to clean up its air. This battle is not quite over, but the February 8 decision is a step in the right direction.