SF Can’t Blame Feds for San Bruno Explosion

SAN FRANCISCO (CN) - The Ninth Circuit upheld the dismissal of a lawsuit claiming better federal oversight could have prevented a catastrophic gas-pipeline explosion in San Bruno in 2010.

A gas pipeline owned and maintained by Pacific Gas and Electric exploded in 2010, killing eight people, injuring dozens and leveling a neighborhood in San Bruno.

The neighboring city of San Francisco sued the U.S. Department of Transportation, Pipeline and Hazardous Materials Safety Administration and directors of both agencies in 2012 for allegedly violating the Natural Gas Pipeline Safety Act and Administrative Procedure Act.

San Francisco accused the federal agencies of failing to decide whether the California Public Utilities Commission adequately enforced federal safety standards before "arbitrarily and capriciously approving the CPUC's certification and providing federal funding to the commission."

A trial court dismissed San Francisco's suit, finding the Pipeline Safety Act's citizen-suit provision didn't allow mandamus actions over the agencies' performance of regulatory duties.

After the city amended its complaint by adding the APA claim, the court tossed the case - again finding that the city improperly challenged the sufficiency of the agencies' actions rather than made a claim of inaction.

On Thursday, a three-judge panel of the Ninth Circuit agreed, concluding that actions "committed to agency discretion" are not eligible for judicial review.

"San Francisco has presented very troubling allegations about the Agency's approach to monitoring the CPUC's regulation of intrastate pipelines," Chief Circuit Judge Sidney Thomas wrote for the panel. "However, 'we have no authority to compel agency action merely because the agency is not doing something we think it should do.'"

Thomas said the Pipeline Safety Act empowers the transportation secretary with discretion in managing state utility regulators like the CPUC, and that the U.S. Supreme Court has set forth several reasons why agency enforcement decisions are not suitable for judicial review.

"The federalism structure of the Pipeline Safety Act favors state assumption of jurisdiction. Management of this delicate federal-state relationship was delegated by Congress to the secretary, and courts are not institutionally well-equipped to micromanage it," Thomas wrote.

"Neither the Pipeline Safety Act nor the APA authorize San Francisco's claims," he concluded.

In addition to the 2010 San Bruno explosion, a fatal explosion in 2008 in Rancho Cordova and a 2011 accident in Cupertino that caused significant property damage occurred on pipelines owned and operated by PG&E.

PG&E was indicted on federal criminal charges in April 2014 for failing to maintain pipelines and violating safety rules that led to the 2010 San Bruno explosion. The utility giant is still fighting those charges.

Earlier this year, the CPUC ordered PG&E to pay a $1.6 billion fine, the largest penalty ever assessed against a utility by the commission, for violating 2,500 state and federal safety rules. The city of San Francisco and U.S. Department of Transpiration did not immediately return requests for comment.

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