OAKLAND, Calif. (CN) – A federal judge heard arguments Wednesday on whether the U.S. Environmental Protection Agency authorized a power plant in Contra Costa County without properly considering its impact on the “last sanctuary” of the endangered Lange’s metalmark butterfly.
The Wild Equity Institute sued the EPA in June, claiming its authorization of the Gateway Generating Station in Antioch, upstream from San Francisco Bay in the Sacramento Delta, threatens the butterfly’s sole remaining habitat. Habitat destruction has reduced the butterfly’s population to only 45 adults, Wild Equity said in its lawsuit, citing a 2006 study.
The Lange’s metalmark has been protected as an endangered species since 1976. Its only known habitat is the Antioch Dunes, whose geographical and ecological isolation “allowed the species there to evolve into unique life forms found nowhere else on Earth,” according to the original complaint.
About 2,000 were alive in the late 1990s, when a wildfire destroyed 40 percent of its habitat, according to the Xerces Society.
Wild Equity, a nonprofit, claims the EPA authorized Pacific Gas & Electric to emit nitrogen pollution without proper consultation with the U.S. Fish and Wildlife Service, in violation of the Endangered Species Act.
Wild Equity said that emissions will hurt the area’s naked-stemmed buckwheat, on which the butterfly’s survival is “entirely dependent.”
At the Wednesday hearing, EPA attorney Bridget McNeil asked U.S. District Judge Phyllis Hamilton to dismiss the complaint. McNeil said Wild Equity has identified an environmental effect, “but they have failed to identify a current federal EPA action that is targeting those nitrogen emissions.”
She said Wild Equity did not participate in the public comment period, and that all of the cases it cited regarding discretionary control “do not salvage their claim here.”
McNeil also said that the institute relies too heavily on emissions limits set 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,” McNeil said.
But Wild Equity staff attorney Brent Plater said that “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 not necessarily is what the Fish and Wildlife Service is going to agree to.”
McNeil countered that there is “simply no reason that agencies would expend energies on consultation for a permit that doesn’t control anymore.”
The Lange’s metalmark (Apodemia mormo langei) is a brightly colored red-orange critter with gray, white and black spots and a wingspan of 1 to 1½ inches. It is named for former UC-Davis professor Henry Lange.
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