Greens Lose Case to Protect Rare Butterfly

SAN FRANCISCO (CN) - A federal judge dismissed an environmental nonprofit's claims that the Environmental Protection Agency improperly authorized a power plant in Contra Costa County that could destroy butterflies.

The Wild Equity Institute sued the EPA in June, claiming that the agency's authorization of the Gateway Generating Station in Antioch threatens the Lange's metalmark butterfly's "last sanctuary."

According to the nonprofit's complaint, the butterfly species has been protected by the Endangered Species Act (ESA) since 1976, and its only known habitat is the Antioch Dunes.

The EPA authorized Pacific Gas & Electric to emit nitrogen pollution without properly consulting the U.S. Fish and Wildlife Service in violation of the ESA, Wild Equity claimed.

But after an October hearing, U.S. District Judge Phyllis Hamilton dismissed the suit finding that the court lacked subject matter jurisdiction and that Wild Equity had failed to state a claim.

She rejected Wild Equity's claim that the EPA failed to reinitiate consultation regarding its issuance of a permit to Gateway "because there is no authorized agency action upon which the EPA could reinitiate consultation."

"Further, the question of appropriate additional emission limits, and the mechanism for imposing such limits, was addressed and resolved through the entry of the consent decree," she said.

"Thus, any attempt to compel the EPA to consult on the nitrogen emission rates that were sent in the consent decree can be viewed only as an attempt to relitigate an issue that was resolved."

She added that "the duty to engage in ESA consultation is triggered only by an affirmative agency act or authorization; the mere existence of unexercised authority to take additional action is insufficient."

And the consent decree at issue "did not require any additional federal permitting action," and "Wild Equity cannot manufacture a federal action for purposes of an ESA claim where no such action exists," Hamilton said.

Furthermore, she said "Wild Equity has not identified a final 'agency action' that can be challenged, but even if it had, a claim challenging a final EPA action can only be pursued in the form of a petition in the court of appeals."

Hamilton denied Wild Equity leave to amend its complaint.

Wild Equity staff attorney Brent Plater, told Courthouse News, "We believe the judge is wrong on the facts and the law and we are reviewing our options to challenge the decision."

The EPA did not immediately to an email requesting comment on Wednesday morning.

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