CBE, Physicians for Social Responsibility, National Resources Defense Council Team Up to Urge EPA and AQMD to Decrease Southern California’s Ozone Levels
PSR-LA et al. v. EPA (One-Hour Ozone case)
Ozone (smog) is one of the most common air pollutants in the country—it burns the lungs and causes them to become swollen and inflamed. Los Angeles has the worst ozone air pollution in the country, according to the American Lung Association’s 2012 State of the Air report released in April 2012.
The federal Clean Air Act sets health-based air quality standards (National Ambient Air Quality Standards, or NAAQS) for ozone, and classifies geographic areas based on their severity of ozone pollution. The Environmental Protection Agency (EPA) classified the South Coast Air Basin in Southern California as an “extreme” area under the one-hour ozone standard—on November 15, 1990. By November 15, 2010—twenty years later—the South Coast Air Basin was supposed to have achieved that standard.
In July 2011, CBE teamed up with Physicians for Social Responsibility-Los Angeles (PSR-LA), Desert Citizens Against Pollution, the Natural Resources Defense Council (NRDC), and Coalition for a Safe Environment to file a lawsuit to force EPA to declare the South Coast in nonattainment for one-hour ozone under the section of the Clean Air Act that will require the air district to create a plan to reach the standard.
After we filed the lawsuit, EPA declared the South Coast in nonattainment for ozone, but did not require the air district to create a plan to reduce ozone levels enough to meet the NAAQS.
That means there is still no Southern California plan to meet the one-hour ozone standard. This case was dismissed as moot from the Federal District Court for the Central District of California on April 26, 2012, is currently on appeal to the Ninth Circuit.
CBE et al. v. EPA (Eight-Hour Ozone case)
On April 30, 2012, NRDC, PSR-LA, and CBE teamed up again to fight for protection against high ozone levels, and filed a case against EPA for approving a plan for the South Coast to reach the federal eight-hour ozone health-based standard (National Ambient Air Quality Standard, or NAAQS); , because the plan won’t get us there. EPA approved a plan for the South Coast that fails to include even the most basic measures that will get us to cleaner air.
A plan must contain specific enforceable strategies, so that if the South Coast agencies do not implement them, the public can sue to have a court force them to do it. Instead, the plan sets goals for how much ozone it wants to reduce without committing to specific measures or strategies for attaining these goals. Rather than approve the plan, EPA should have told the South Coast to create a plan that will actually clean up our air.
The case is now pending in the Ninth Circuit Court of Appeals.
PSR-LA et al. v. EPA (Near-Highway PM2.5 Monitoring case)
Over 1.2 million South Coast residents live in neighborhoods near freeways crisscrossing Los Angeles. These residents breathe air contaminated with the diesel fumes and particles from thousands of trucks passing weekly on its freeways and highways, hauling goods to and from the Ports of Los Angeles and Long Beach.
The Clean Air Act require states or local agencies—in Southern California, the South Coast Air Quality Management District (AQMD)—to monitor the amounts of the particulate matter that cars and trucks produce.
Particulate matter is tiny solid particles suspended in the air. They are toxic, and cause a range of health impacts. When we inhale it, particulate matter enters deep into the lungs and even our bloodstream.
CBE and allies submitted comments in June 2011 arguing that AQMD’s Air Monitoring Network Plan fails to meet the requirements established in the Clean Air Act and other regulations—it fails to adequately monitor in urban areas near heavily-trafficked highways, especially with high-volume diesel truck traffic.
Without proper monitoring, AQMD won’t come up with a plan to reduce particulate levels in compliance with the federal Clean Air Act.
The failure to adequately address the elevated levels of pollution in communities near California’s highways violates environmental justice principles. In December 2011, CBE, the Natural Resources Defense Council, Physicians for Social Responsibility-LA, and East Yard Communities for Environmental Justice filed suit against the Environmental Protection Agency (the agency responsible for approving AQMD’s monitoring plan) in the Ninth Circuit Court of Appeals.
PSR-LA et al. v. EPA (South Coast PM2.5 Plan case)
Under the federal Clean Air Act, the South Coast Air Quality Management District (AQMD) must create a plan to meet the health-based standards (National Ambient Air Quality Standards, or NAAQS) for fine particulate matter (PM2.5).
Initially, EPA proposed to approve in part, and disapprove in part, AQMD’s 2007 plan to meet the PM2.5 NAAQS, because the plan could not show that the South Coast could meet the standard.
EPA then changed course and approved AQMD’s plan and its request to extend the deadline for meeting the standard—from April 2010 to April 2015. A plan must contain specific enforceable strategies, so that if the South Coast agencies do not implement them, the public can sue to have a court force them to do it. Instead, the plan sets goals for how much particulate matter it wants to reduce without committing to specific measures or strategies for attaining these goals.
On January 9, 2012, CBE, NRDC, and Physicians for Social Responsibility-Los Angeles sued EPA in the Ninth Circuit Court of Appeals for approving an inadequate and unenforceable plan.
CBE and WildEarth Guardians Tell EPA to Strengthen Carbon Monoxide Standards
CBE et al. v. EPA (CO NAAQS case)
Carbon monoxide (CO) is lethal and also contributes to global warming. The current health-based air quality standards (NAAQS), which limit concentrations in the air to no more than 9 parts per million over an eight-hour period, were first adopted in 1971, forty years ago. Since then, numerous studies have found that these standards are inadequate to prevent impacts to human health and the environment.
Five years ago, CBE and its allies sued EPA for failing to review and update the CO NAAQS. We won, and the court set a schedule for EPA to complete its update. On August 31, 2011, EPA completed the update and left the CO NAAQS unchanged.
EPA’s own Clean Air Scientific Advisory Committee (CASAC) noted its concern that EPA was “underestimating CO exposure among some vulnerable groups, especially persons with low income status.” Unfortunately, EPA rejected the findings of its scientific advisors and instead opted to maintain the status quo.
On October 31, 2011, CBE and WildEarth Guardians (represented by the University of Denver Sturm College of Law Environmental Clinic) sued the EPA in the U.S. Court of Appeals for the D.C. Circuit under the Clean Air Act for failing to set NAAQS at a level that protects Americans, especially low-income communities, from carbon monoxide.
No More Power Plants!
Cal. Communities Against Toxics et al. v. EPA (Sentinel Power Plant case: Fighting a Power Plant in the Desert)
In the South Coast, the federal Clean Air Act requires that new pollution sources obtain–either from the South Coast Air Quality Management District (AQMD) or from other pollution sources that have shut down–pollution credits to offset the new source’s pollution.
(The AQMD can quantify the amount of pollution no longer produced from facilities that have shut down, and turn that pollution into “credits” to be sold to new facilities that want to pollute.)
In 2008, CBE and allies won an injunction prohibiting the AQMD from creating a new pool of pollution credits and selling them to power plants, because AQMD’s environmental review of this project under CEQA failed to describe its real environmental impacts.
But rather than simply complying with the injunction, AQMD went to the California Legislature to change the law. AB 1318 orders AQMD to create new pollution credits from facilities that shut down since 1999, and sell them to a power plant near Palm Springs, called CPV Sentinel.
EPA approved AB 1318 into California’s air quality management plan (State Implementation Plan, or SIP) on April 20, 2011, over the objections of CBE, California Communities Against Toxics (CCAT), and allies. CBE and CCAT filed suit in the Ninth Circuit.
The outcome of this case will affect both energy policy in the South Coast area and how new pollution sources throughout the South Coast region offset new emissions.
Oral argument in the Ninth Circuit Court of Appeals was heard on June 5, and we are awaiting a decision.
CBE’s Work With the California Public Utilities Commission Heads Off Polluting Plants and Pushes the State Toward Renewable Energy Sources
CBE is committed to a regional and statewide transition away from fossil fuel. Decisions about power plant construction are supposed to be based on the projected need for power in a state with California’s immense population— but the enormous profits garnered by the entrenched fossil-fuel interests can exert an outsize influence.
The CBE legal team zeroed in on strategies to remove the financial incentive to build new plants. Much of the state’s electricity is provided by investor-owned utilities, including Southern California Edison (SCE) and Pacific Gas & Electric (PG&E).
In 2010, CBE entered into a settlement agreement stating that SCE and PG&E have not shown a need for new plants for these two utilities through 2020. The settlement was the result of CBE and allies’ participation in developing what’s called a Long Term Procurement Plan (LTPP), a document that utilities like SCE and PG&E must provide to the California Public Utilities Commission (PUC) in order for the commission to approve power-company contracts to buy power. The PUC generally will approve a contract for new gas-fired power plant as long as the utility’s LTPP shows there is a need for it. CBE argues that if a utility company’s plan can’t demonstrate a need for more power, there’s no justification to build new gas-fired power plants.
CBE and allies have achieved significant success in the 2010 LTPP. On April 19, 2012, after determining that the existing electricity supply can meet the state’s system needs through the year 2020, the PUC voted unanimously to defer any new procurement of fossil fuel generation. This ruling established for most of the state, that California’s long-term energy needs do not require building more fossil fuel infrastructure, which contributes to global warming.
CBE also successfully argued for use of a sophisticated model that looks at how much new gas-fired power is needed to integrate renewables. The model’s results showed that the companies could not justify building more polluting power plants, as a result of which, they were willing to settle with CBE and other parties. Further, the PUC affirmed that the utilities must prioritize energy efficiency and renewables in each purchase they make. CBE’s legal team continues to participate in the Long Term Procurement Plan process with Southern California Edison and Pacific Gas & Electric.
CBE Fights Two More Polluting Power Plants in Northern California’s Contra Costa County
Eastern Contra Costa County in Northern California is already home to 14 power plants—but in 2009, Pacific Gas & Electric (PG&E) sought approval from the California Public Utilities Commission (PUC) to build two new large ones there, Oakley and Marsh Landing.
CBE intervened to oppose approval, given the already high asthma rates in Eastern Contra Costa County. CBE could not see a justification for adding more pollution with two new plants. The US Fish & Wildlife Service and the California Department of Fish and Game raised concerns about the impacts several of the plants would have on three endangered species.
Initially, the Public Utilities Commission rejected PG&E’s proposal to build the Oakley plant in Oakley; the commission concluded that PG&E was attempting to over-procure energy (the energy from the plant was not needed). After PG&E objected, the PUC made a 180-degree turn and approved the Oakley plant, observing that PG&E might need the power sometime after the existing planning horizon. Meanwhile the California Energy Commission (CEC) approved plans for the Oakley plant, entirely disregarding comments regarding dire impacts the plant would have on local plants, animals, and people’s health.
On June 17, 2011, CBE and activist Bob Sarvey filed a petition with the California Supreme Court seeking review of the PUC and CEC decisions that allowed Oakley to proceed. The Utility Reform Network (TURN) filed a separate, narrower, petition in the Court of Appeal seeking review of the PUC decision on Oakley. On March 16, 2012, the Court of Appeal for the First Appellate District granted TURN’s petition, concluding that the PUC’s efforts to minimize public participation in its approval of the Oakley contract supported a conclusion that “the Commission had become so enamored of the project, it was willing to dispense with the procedural safeguards established by its rules and the statutes in order ‘to achieve its preferred outcome.’” The Court of Appeal ruled that the PUC had committed extensive violations of its own processes, and annulled the approval. Now CBE’s California State Supreme Court action, which had been on hold pending resolution of TURN’s case, is proceeding. PG&E immediately re-applied to the PUC for approval of the Oakley contract.