By Glen Hansen
In Romoland School District v. Inland Empire Energy Center, LLC (9th Cir.Cal., Nov. 18, 2008, No. 06-56632) U.S.App. 23854, the United States Court of Appeals for the Ninth Circuit examined when the citizen suit provision of the Clean Air Act (“CAA”) may be used to halt construction of a power plant that was granted an integrated permit.
The Inland Empire Energy Center (“IEEC”), intended to construct a power plant in Romoland, an unincorporated area of Riverside County. IEEC submitted applications to the South Coast Air Quality Management District (“SCAQMD”) for a permit to construct the project and for a Title V permit under the CAA. After a number of public hearings, the SCAQMD issued IEEC a combined Title V/construction permit.
The Romoland School District and several individuals and environmental groups, (collectively, “Plaintiffs”) filed a complaint in the United States District Court under the CAA’s citizen suit provision (42 U.S.C. § 7604(a).) The complaint contained two causes of action against IEEC for alleged violations of the CAA (i.e., invalid offsets and excessive emissions levels), and two causes of action against SCAQMD for granting IEEC a permit that allowed for those two violations. Within a month of filing suit, Plaintiffs moved for a preliminary injunction to halt construction of the power plant until IEEC’s permit was modified to comply with the applicable CAA provisions. IEEC then moved to dismiss the two causes of action against it for failure to state a claim under Federal Rule of Civil Procedure, rule 12(b)(6). IEEC based its motion to dismiss on the ground that the district court lacked jurisdiction over the suit since IEEC had been granted a permit under Title V of the CAA, and since such permits may not be challenged via the CAA’s citizen suit provision.
The district court denied the motion for a preliminary injunction, concluding that the injunction factors (i.e., likelihood of success on the merits, irreparable harm and the balance of hardships) favored the defendants. The district court also granted IEEC’s motion to dismiss with prejudice for the reasons stated in that motion. Plaintiffs then moved for voluntary dismissal, without prejudice, of their two remaining claims against SCAQMD in light of the district court’s rationale in granting IEEC’s motion to dismiss. The district court granted Plaintiffs’ motion for voluntary dismissal. Plaintiffs then appealed the “Court approved voluntary dismissal” and the “interlocutory orders that gave rise to the judgment, including, but not limited to, order granting motion to dismiss without leave to amend and order denying motion for preliminary injunction.” The Ninth Circuit Court of Appeals affirmed the district court’s dismissals of all Plaintiffs’ claims.
The court of appeals first resolved the procedural issue of whether the court had appellate jurisdiction in light of Plaintiffs’ voluntary dismissal of the claims against SCAQMD without prejudice. Finding appellate jurisdiction, the court of appeal then addressed the following two questions related to whether the district court lacked subject-matter jurisdiction over Plaintiffs’ claims:
(1) [A]s a factual matter, has the SCAQMD merged its preconstruction requirements, including those for new sources of nonattainment pollutants in nonattainment areas, into a comprehensive permitting scheme under the umbrella of Title V; and (2) if so, is it a legal consequence of such an arrangement that the citizen suit provision of the CAA, 42 U.S.C. § 7604, may not be used to challenge the validity of such a consolidated permit under applicable [State Implementation Plan] requirements?
As to the first question, the court of appeals recognized that the U.S. Environmental Protection Agency intended to consolidate preconstruction and Title V permitting requirements. The court of appeals also found that the SCAQMD’s various permit application processes for potential emitters subject to Title V were consolidated into a single comprehensive system, and that IEEC’s permit for its proposed power plant was issued by SCAQMD pursuant to this consolidated system.
Next, the court of appeals addressed the second question of whether the citizen suit provision in Title 42 United States Code section 7604 of the CAA could be used to challenge the permit issued to IEEC by the SCAQMD. The court of appeals stated that the citizen suit provision would apply if IEEC had violated a term or condition of the permit, or if IEEC had sought to begin building and operating the power plant without obtaining a permit under SCAQMD’s merged Title V/construction permit system. But Plaintiffs’ challenge did not fit into either one of those categories. Instead, Plaintiffs alleged that IEEC is complying with the terms of its permit, but that those terms are themselves a violation of the CAA. The court of appeals determined that, because the challenged terms are part of a permit issued under Title V, the administrative and judicial review provisions for challenging a permit under Title V apply. Those provisions: (a) require persons objecting to the issuance of a Title V permit to exclusively “petition the Administrator,” and (b) provide for judicial review regarding such petitions in the courts of appeals under 42 U.S.C. § 7607, not through citizen suits in the district courts via § 7604. Because the Plaintiffs’ action in this case was brought in an inappropriate forum under an inapplicable CAA provision, the district court lacked subject matter jurisdiction over plaintiffs’ claims.
Accordingly, the court of appeals clarified the procedural rule where a state or local air pollution control district has integrated the preconstruction requirements of Title I with the permitting requirements of Title V and a permit is issued under that integrated system; a claim that the terms of that permit are inconsistent with other requirements of the CAA may only be brought in accordance with the administrative and judicial review procedures authorized by Title V of that Act (42 U.S.C. §§ 7661-7661(f).), and may not be brought in federal district court under the CAA’s citizen suit provision. (42 U.S.C. § 7604.).
Glen Hansen is a senior associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.