EPA Exempts California Power Plant From Pollution Laws

Clean air advocates vow to sue over agency’s free pass for Avenal plant


Paul Cort, Earthjustice, (510) 550-6777


Vera Pardee, Center for Biological Diversity, (858) 717-1448

In a major handout to air polluters, the Environmental Protection Agency (EPA) announced today it is exempting a proposed gas-fired power plant in California from current air pollution laws because, according to agency officials, it took too long to process the permit application. The decision could set a dangerous precedent allowing similar exemptions for other polluting industries across the country.

Clean air advocates, who earlier called for the newer, stronger air pollution restrictions on the plant, vowed to appeal the decision.

The proposed Avenal Power Plant, to be built by Texas-based Macquarie Energy, is targeted for California’s San Joaquin Valley, near the rural communities of Avenal and Kettleman City. Local residents are already made ill by diesel fumes, toxic pesticides, and contamination from a nearby toxic waste dump—the largest in the state.

The power plant would burn natural gas to generate 600 megawatts of electricity and, with this new exemption, will emit air pollution at levels in excess of what is allowed by law. According to EPA, the San Joaquin Valley already has some of the most polluted air in the country.

The EPA regional office in San Francisco, which is responsible for reviewing and issuing permits for projects in California, received completed plans for the plant in March 2008 but waited for required information from other agencies before holding public hearings on the proposed project in October 2009. In the meantime, in 2009, the EPA in Washington, D.C. adopted new national standards in order to reduce harmful nitrogen dioxide and sulfur dioxide pollution. It also adopted new rules regulating power plant emissions of carbon dioxide and other greenhouse gases. Because the construction plans for the Avenal plant did not meet these new pollution regulations, the EPA regional office requested that the facility curb its pollution in order to receive the final permit.

Then, in an unprecedented administrative action reversing previous EPA policy, Gina McCarthy, EPA’s Assistant Administrator for Air and Radiation in Washington, D.C., announced that the plant would receive a permit even though it will pollute the air far more than current law allows. McCarthy blamed her own agency for “the factors that have contributed to the extended delay in this case.” The announcement overruled EPA’s regional office, which normally has jurisdiction in California.

“This decision is bad not only for the residents of Avenal and Kettleman City, who will be breathing the emissions from this plant, it’s also a bad precedent for the rest of the country,” said Paul Cort, an attorney for the public interest law firm Earthjustice. “This opens the floodgates to similar projects even when we know that they will result in harmful pollution and even when they admit that they will not install the best available pollution controls.”

Earthjustice filed comments opposing EPA’s proposed exemption for the Avenal plant on behalf of the Sierra Club, the Center for Biological Diversity, and the Center on Race, Poverty & the Environment.

“EPA has already announced that during the next several years, it will regulate harmful carbon pollution from only the largest industrial polluters in the country,” said Vera Pardee, an attorney with the Center for Biological Diversity. “Now the agency wants to let even those polluters off the hook and allow them to further foul our air and exacerbate the climate change happening all around us. Instead of retreating from pollution reductions again and again, EPA should stand fast in enforcing the environmental laws that have served this nation so well for 40 years.”

EPA estimates that 10 to 20 other proposed major industrial projects with current applications before the agency could be “grandfathered in” under this new policy. There is concern that the precedent could also roll back hard-won pollution controls at the proposed Sunflower coal-burning plant in Kansas.

“Across the country, people have demanded a reduction in air pollution and greenhouse gases. They should be distressed by EPA’s decision here to cave to pressure by industrial polluters seeking to undo that progress,” Cort said. “Adopting more stringent standards doesn’t do the public any good if facilities are excused from meeting those standards. Over and over we are seeing this as the mode of operation for this EPA.”

Advocates plan to challenge the permit grandfathering this facility and will be on guard against other polluters who might seek to exploit today’s action in order to increase pollution in their communities.

View the EPA decision.

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