Ninth Circuit denies NGO challenge to PG&E's Gateway plant
A federal appeals court in California has denied a challenge from environmental groups regarding Pacific Gas and Electric’s 530-MW Gateway Generating gas-fired plant in Antioch, Calif.
Wild Equity Institute and the Sierra Club filed a petition with the Environmental Protection Agency, challenging the plant’s Title V Clean Air Act (CAA) operating permit from the Bay Area Air Quality Management District.
- The EPA denied the challenge, and the U.S. Court of Appeals for the Ninth Circuit has now upheld the EPA’s decision. The court said it did not rule on the substantive issues of the permit, but on whether or not the EPA acted in accordance with the law.
Since the California power market was deregulated toward the end of the last century, the state’s utilities have largely been barred from building power plants.
The Gateway power project was started by an independent power producer, but the developer ran into financial problems, and the plant was taken over by PG&E.
The Bay Area Air Quality Management District proposed to issue a CAA operating permit for the project. The EPA did not object to the issuance of the permit, but the Wild Equity Institute petitioned the EPA to review that decision.
In an order signed Oct. 15, 2014, then-EPA Administrator Gina McCarthy denied the petition.
"The petitioner's claim is based on the primary contention that requirements of the [Endangered Species Act] (ESA) are applicable requirements for purposes of the CAA title V program. However, ESA-related provisions are not requirements of the CAA, but rather under the ESA, a separate federal statute that is administered by the [Fish and Wildlife Service] and NOAA Fisheries Service," the order said.
The plant entered service in January 2009. Wild Equity petitioned the Ninth Circuit, claiming the EPA did not comply with the Clean Air Act in its decision to uphold the operating permit. The court found that the EPA acted correctly in denying Wild Equity’s petition.
- U.S. Court of Appeals for the Ninth Circuit Wild Equity Institute and Sierra Club v. US EPA - memorandum opinion
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