9th Circuit Declines to Vacate Clean Air Credits

     (CN) – A Riverside County, California power plant will continue benefit from clean air credits authorized by the EPA, the 9th Circuit ruled, declining to vacate the agency’s decision while proceedings continue.



     Under the Clean Air Act, state governments must establish a permitting program for new polluters in areas that don’t meet the EPA’s air quality standards. These plans, which aim to offset any emissions increase with a corresponding reduction, must be approved by the EPA.
     In the South Coast Air Quality Management District, which includes Riverside County, excess reductions become “credits” which can then be bought by companies hoping to meet their offset requirements. Some credits are automatically distributed to entities like schools and hospitals by statute.
     In 2009, California passed a bill requiring the district to transfer some credits to the soon-to-be-completed Sentinel power plant.
     The EPA granted approval of the transfer, sparking litigation by two environmental groups: California Communities Against Toxics and Communities for a Better Environment.
     The groups alleged procedural errors during the rulemaking process and called the EPA’s decision arbitrary and capricious.
     Before the 9th Circuit, the EPA admitted that the reasoning adopted for its final rule was flawed and voluntarily sought a remand to explain how the Sentinel credits met regulatory requirements and recalculate the credits available.
     “Because the EPA has recognized the merits of the petitioners’ challenges and has been forthcoming in these proceedings, there is no evidence that the EPA’s request is frivolous or made in bad faith,” the unsigned opinion held.
     The court elected to leave the EPA’s rule allowing the credits transfer intact, citing the inconsequential nature of the agency’s errors and the consequences of denying Sentinel the credits.
     “Sentinel is scheduled to come on line in November, but vacatur would pave the road to legal challenges to Sentinel’s construction that could well delay a much needed power plant. Without Sentinel, the region might not have enough power next summer, resulting in blackouts. Blackouts necessitate the use of diesel generators that pollute the air, the very danger the Clean Air Act aims to prevent,” the three-judge panel explained.
     “Stopping construction would also be economically disastrous. This is a billion-dollar venture employing 350 workers. In addition, vacatur would likely require the California legislature to pass a new bill to allow the District to transfer credits from its internal bank to Sentinel, which would create needless and duplicative legislative effort.”
     Because the California Energy Commission has found Sentinel’s construction harms insignificant with mitigation, which doesn’t implicate the disputed pollution credits, allowing the project to continue will not result in additional environmental harm.”While we have only ordered remand without vacatur in limited circumstances, if saving a snail warrants judicial restraint, see Idaho Farm Bureau, 58 F.3d at 1405-06, so does saving the power supply,” the court concluded.

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