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Tuesday, June 18, 2024 | Back issues
Courthouse News Service Courthouse News Service

EPA Fudged Rules to OK Power Plant, Greens Say

OAKLAND, Calif. (CN) - A federal judge heard from both sides Wednesday in a case alleging that the Environmental Protection Agency authorized a power plant in Contra Costa County without properly considering the plant's impact on an endangered species.

Wild Equity Institute sued the EPA in Federal Court earlier this year, claiming that its authorization of the Gateway Generating Station in Antioch - which is upstream from the San Francisco Bay in the Sacramento-San Joaquin Delta - threatens the "last sanctuary" of Lange's metalmark butterfly.

The EPA authorized the plant owned by Pacific Gas & Electric to emit nitrogen pollution without proper consultation of the U.S. Fish and Wildlife Service, in violation of the Endangered Species Act, the environmental nonprofit claims.

Wild Equity says that the emissions will hurt the area's naked-stemmed buckwheat, on which it said the butterfly's survival is "entirely dependent."

Arguing for the EPA at the hearing of its motion to dismiss the complaint, Bridget McNeil told U.S. District Judge Phyllis Hamilton that the nonprofit has identified an environmental effect.

"But they have failed to identify a current federal EPA action that is targeting those nitrogen emissions," she said.

She noted that the institute did not participate in the comment period preceding the agency's authorization of the plant, and she said that all of its cited discretionary control cases "do not salvage their claim here."

McNeil also said that the institute relies too heavily on the emissions limits set forth in a 2001 permit, which are "not relevant controls" in this case.

"At bottom, the only thing on which plaintiff could obtain meaningful consultations is on current emissions," she said.

Brent Plater, arguing for Wild Equity, said "the EPA retains some ability to exhibit pollution control influence over third parties like PG&E."

"This is somewhat hypothetical, because until they engage in the consultation process we don't know what the Fish and Wildlife Service will demand," he said.

"Just because the EPA believes that what they've done is beneficial to the butterfly, that is not necessarily what the Fish and Wildlife Service is going to agree to."

McNeil contended that there is "simply no reason that agencies would expend energies on consultation for a permit that doesn't control anymore."

Plater is a staff attorney for Wild Equity, which is based in San Francisco.

McNeil is with the U.S. Department of Justice.

Hamilton gave no indication as to when she might issue her ruling on the government's motion to dismiss.

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