Suit Challenges EPA Exemption of California Power Plant From Pollution Laws

Clean air advocates go to court over agency’s free pass for Avenal facility


George Torgun, Earthjustice, (510) 550-6784


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


Joanne Spalding, Sierra Club, (415) 977-5725


Bradley Angel, Greenaction, (415) 284-5600

Today, a coalition of conservation and environmental justice groups challenged the federal air pollution permit for the Avenal Power Plant proposed in the San Joaquin Valley. In a controversial decision, EPA exempted the project from several key air pollution standards. The facility, proposed to be built by Texas-based Macquarie Energy, is targeted near the rural communities of Avenal and Kettleman City in California’s San Joaquin Valley, which already has some of the most polluted air in the country. The coalition filed legal papers with the Ninth Circuit Court of Appeals challenging the permit issued by the U.S. Environmental Protection Agency (EPA).

On May 27th, EPA announced that it would not require the project to comply with current pollution control requirements because, according to agency officials, EPA took too long to process the permit application. Instead, the agency “grandfathered” the project from requirements to show that it would not cause unsafe levels of nitrogen dioxide and sulfur dioxide pollution, and to install the best available controls for greenhouse gases.

The Sierra Club, Center for Biological Diversity, and Greenaction for Health and Environmental Justice, represented by national public-interest law firm Earthjustice, first challenged the permit at the EPA’s Environmental Appeals Board in June. On August 18th, a panel of three administrative law judges at the Board said they did not have time to fully consider the grandfathering issue and allowed the weaker permit to remain.

“EPA political appointees chose to ignore the plain requirements of the Clean Air Act, and we’re now asking the federal appeals court to reject this attempt to ignore Congress’s directives,” said George Torgun, an attorney for Earthjustice.

“The 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 let them foul our air and worsen climate change. Instead of retreating from pollution reductions again and again, the EPA should do its job and protect Americans’ health by enforcing the environmental laws that have served this nation so well for 40 years.”

The EPA regional office in San Francisco, which is responsible for reviewing and issuing permits for projects in California, received an application for the plant in March 2008 but waited for required information from other agencies before holding public hearings on the proposal in October 2009. In 2010, EPA adopted new national standards in order to protect public health against harmful nitrogen dioxide and sulfur dioxide pollution. It also adopted new rules regulating 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 action, Gina McCarthy, EPA’s Assistant Administrator for Air and Radiation in Washington, D.C., reversed previous agency policy and announced that the plant would receive a permit even though it will pollute far more than current law allows. EPA Headquarters then revoked the permitting responsibility for the Avenal plant from EPA’s regional office, which normally has jurisdiction over facilities in California.

“Low-income and people of color living near the Avenal site are already burdened by a major birth defect and infant mortality cluster, high levels of diesel traffic fumes, toxic pesticide spraying, and living next to the largest toxic waste dump in the western U.S.,” said Bradley Angel, executive director of Greenaction. “The EPA should not permit a new polluting power plant, especially as the law is clear that new power plants must achieve air pollution control requirements that exist today, not those from the past that EPA has already found to be insufficient to protect public health.”

Environmental advocates have warned that the EPA is considering extending the “grandfather” policy to other polluting industries across the country. The agency estimates that 10 to 20 other proposed major industrial projects with current applications before the agency could be “grandfathered” in under this new approach.

“The Avenal decision would be devastating not only for the communities living around the plant in the San Joaquin Valley, but for all of us that depend on EPA to ensure that new industrial sources are only allowed if they will not create new air quality problems,” said Joanne Spalding, an attorney with the Sierra Club.

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