Court pulls the plug on Central Valley power plant
August 12, 2014
• Says EPA exceeded its authority
• “Back to the drawing board”
The U.S. Environmental Protection Agency exceeded its authority in granting a permit to build Avenal Power Center LLC, a 600 megawatt natural gas-fired power plant in Kern County, the U.S. 9th Circuit Court of Appeals says in a ruling handed down Tuesday.
The Clean Air Act unambiguously requires Avenal Power to demonstrate that the project complies with the regulations in effect at the time the permit was issued, a summary of the opinion says.
The appellate court further held that because Congress had directly spoken on the issue, the EPA could not waive this requirement.
The Sierra Club, Greenaction for Health and Environmental Justice, the Center for Biological Diversity, and El Pueblo para el Aire y Agua Limpio challenged the EPA action.
The decision tosses out the approval.
“According to EPA, the facility ‘will be equipped with state-of-the-art control technology and will be one of the lowest emitting power plants of its kind,’” the court says. “It is undisputed, however, that its expected emissions of several pollutants, including nitrogen dioxide, carbon dioxide, and sulfur dioxide, are sufficient to subject it to regulation under the Clean Air Act.”
The case has dragged on for years, with it reaching the District of Columbia Circuit Court of Appeals and then traveling to the 9th Circuit.
“But the parties’ protracted negotiation of the Clean Air Act’s requirements— frustrating and burdensome though it may have been in this case—does not endow the EPA with authority simply to waive the newly effective regulations on an ad hoc basis by ‘rewriting unambiguous statutory terms’ in order to serve its own ‘bureaucratic policy goals,’” says the latest ruling.
“EPA now claims the authority to waive the law’s requirements at will, without regard to the regulations it has passed, and without any precedential value one way or another for future parties. That unbounded discretion exceeds the agency’s authority,” says the 9th Circuit’s decision. “Honoring the statute’s plain language and overriding purpose, we must send EPA and Avenal Power back to the drawing board.”