Wild Equity Institute v. United States Environmental Protection Agency

Filing 33

ORDER by Judge Hamilton granting 19 Motion to Dismiss (pjhlc1, COURT STAFF) (Filed on 11/20/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WILD EQUITY INSTITUTE,

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United States District Court
Northern District of California

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Case No. 15-cv-2461-PJH

Plaintiff,

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v.

ORDER GRANTING MOTION TO
DISMISS

UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Defendant.

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Defendant’s motion for an order dismissing the complaint for lack of subject matter

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jurisdiction and failure to state a claim came on for hearing before this court on October

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21, 2015. Plaintiff appeared by its counsel Brent Plater, and defendant appeared by its

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counsel Bridget McNeil and Julie Walters. Having read the parties’ papers and carefully

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considered their arguments and the relevant legal authority, the court hereby GRANTS

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the motion.

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INTRODUCTION
Plaintiff Wild Equity Institute (“Wild Equity”), a non-profit environmental group,

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bought this action against the United States Environmental Protection Agency ("EPA"),

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asserting a claim under § 7 of the Endangered Species Act, 16 U.S.C. § 1536. Wild

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Equity alleges that emissions from a power plant in Contra Costa County endanger the

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continued existence of the Lange's metalmark butterfly, the Antioch Dunes evening

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primrose, and the Contra Costa wallflower (“the Listed Species”), each of which is

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endemic to the Antioch Dunes National Wildlife Refuge ("Antioch Dunes NWR").

STATUTORY BACKGROUND

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A.

The Endangered Species Act
The Endangered Species Act ("ESA") provides for the listing of species as

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threatened or endangered. 16 U.S.C. § 1533. Section 7(a)(2) of the ESA requires

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federal agencies such as the EPA to

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insure that any action authorized, funded, or carried out by such agency
(hereinafter . . . referred to as an “agency action”) is not likely to jeopardize
the continued existence of any endangered species or threatened species
or result in the destruction or adverse modification of habitat of such species
which is determined by the Secretary . . . to be critical.
16 U.S.C. § 1536(a)(2). An agency is required to consult with either the United States

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Fish and Wildlife Service (“FWS”) or the National Marine Fisheries Service (collectively,

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United States District Court
Northern District of California

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“the Services”) whenever the agency takes action that “may affect” listed species or their

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habitats. 16 U.S.C. § 1536(a)(2); see also 50 C.F.R. § 402.14(a). Section 7 applies only

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to actions over which there is discretionary Federal involvement or control. 50 C.F.R.

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§ 402.03.

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The regulations promulgated under the ESA define “agency action” as follows:

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Action means all activities or programs of any kind authorized, funded, or
carried out, in whole or in part, by Federal agencies in the United States or
upon the high seas. Examples include, but are not limited to: (a) actions
intended to conserve listed species or their habitat; (b) the promulgation of
regulations; (c) the granting of licenses, contracts, leases, easements, rightsof-way, permits, or grants-in-aid; or (d) actions directly or indirectly causing
modifications to the land, water, or air.

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50 C.F.R. § 402.02.

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In considering whether there has been an “agency action,” courts in the Ninth

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Circuit employ a two-part test: “First, we ask whether a federal agency affirmatively

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authorized, funded, or carried out the underlying activity. Second, we determine whether

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the agency had some discretion to influence or change the activity for the benefit of a

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protected species.” Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1021 (9th

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Cir. 2012) (en banc).

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If the agency determines that its action “may affect” endangered or threatened
species or critical habitat, it must pursue either informal or formal consultation with one of
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the Services. See 50 C.F.R. §§ 402.13-402.14. Formal consultation is required unless

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the agency determines, as a result of informal consultation with the Service, “that the

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proposed action is not likely to adversely affect any listed species or critical habitat.” Id.

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§ 402.13(a). If formal consultation is required, the Service prepares a Biological Opinion

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stating whether the proposed action is likely to “jeopardize the continued existence of

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listed species or result in the destruction or adverse modification of critical habitat.” Id.

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§ 402.14(g). Thereafter, the agency must determine how to proceed with its action in

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light of the Service’s Biological Opinion. Id. § 402.15.
The ESA's citizen suit provision authorizes any person to “commence a civil suit

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on his own behalf . . . to enjoin any person, including the United States and any other

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United States District Court
Northern District of California

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governmental instrumentality or agency . . . who is alleged to be in violation of any

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provision of this chapter or regulation issued under the authority thereof.” 16 U.S.C.

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§ 1540(g)(1)(A). The citizen suit provision also provides that “district courts shall have

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jurisdiction . . . to enforce any such provision or regulation.” Id. § 1540(g).

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B.

The Clean Air Act1
Title I of the Clean Air Act is designed to ensure that air quality in the United

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States attains and maintains National Ambient National Ambient Air Quality Standards

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(“NAAQS”), which are health-based standards for the amount of air pollutant in the

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ambient air. 42 U.S.C. § 7409. The New Source Review ("NSR") program of the Clean

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Air Act divides the nation into "attainment" areas, which have attained NAAQS, and "non-

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attainment" areas, which have not attained the standards. 42 U.S.C. §§ 7470-7515. The

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Act requires that all new major stationary sources obtain a preconstruction permit that

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complies with the Act's NSR requirements. 42 U.S.C. §§ 7470, 7475(a).
Areas designated as either "non-attainment" or "unclassifiable" are subject to

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requirements to bring them into attainment, including the non-attainment NSR permitting

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The complaint alleges a single cause of action under the ESA. The court includes this
discussion of the Clean Air Act to make the discussion of the factual and procedural
background more comprehensible.
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provisions. Id. §§ 7501-7515. Attainment areas, by contrast, are subject to the

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Prevention of Significant Deterioration (“PSD”) permitting provisions. See Alaska Dep't of

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Envtl. Conservation v. Envtl. Prot. Agency, 540 U.S. 461, 469-75 (2004).

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States are encouraged to develop their own regulatory approaches for

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implementing the NSR and PSD programs. See United States v. Pac. Gas & Elec., 776

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F.Supp. 2d 1007, 1012 (N.D. Cal. 2011) (“PG&E”). Regulatory programs developed by

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the states, and known as “State Implementation Plans” (“SIPs”), are intended to satisfy

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the minimum requirements of the Clean Air Act. See generally 42 U.S.C. § 7410(a). A

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state's SIP “may not adopt or enforce any emission standard or limitation which is less
stringent” than the Act's requirements. 42 U.S.C. § 7416. Each SIP is required to

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United States District Court
Northern District of California

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contain preconstruction permitting requirements for major stationary sources, including

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the PSD permitting requirements that apply in attainment and non-attainment areas. See

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42 U.S.C. §§ 7410(a)(2)(C), 7470-7515. PSD permits issued by states under approved

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SIPs are actions under state law. In re Milford Power Plant, 8 E.A.D. 670, 673, 1999 WL

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1120154 at *3-4 (EAB Oct. 18, 1999).

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California has adopted the SIP approach in the San Francisco Bay Area with

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respect to the non-attainment NSR program of the Clean Air Act, but not with respect to

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the attainment area PSD program. See PG&E, 776 F.Supp. 2d at 1021. For non-

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attainment NSR, the Bay Area Air Quality Management District ("BAAQMD"), an agency

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with jurisdiction in the nine Bay Area counties, see Cal. Health & Saf. Code §§ 40200-

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40276, has adopted regulations and has had those regulations approved by the EPA.

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See 64 Fed. Reg. 3850 (Jan. 26, 1999), 40 C.F.R. §§ 52.21, 52.22(c)(199)(i)(A)(8)).

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These “SIP-approved” non-attainment NSR regulations are set forth in BAAQMD

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Regulation 2, Rule 2.

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As California has not adopted its own regulatory system to implement the Clean

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Air Act's PSD requirements in the Bay Area, PSD permitting is governed by federal

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regulations which are codified at 40 C.F.R. § 52.21, and which incorporate the procedural

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regulations at 40 C.F.R. Part 124. These regulations provide for the EPA to delegate its
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authority to conduct PSD source review and issue PSD permits. See 40 C.F.R. 52.21(u).

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Where such a delegation occurs, the PSD permits issued by the delegate agency remain

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federal and, as described below, are subject to EPA’s regulations governing

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administrative appeals and exhaustion of administrative remedies. The delegate agency

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is simply authorized to issue the permits under federal law on EPA’s behalf, rather than

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issuing PSD permits under state law as in a state with an approved PSD program in its

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SIP. Milford Power, 8 E.A.D. at 673-74.

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On April 23, 1986, the EPA delegated to BAAQMD the “authority of the
administrative and enforcement elements” of the federal PSD program's implementing
regulations, subject to the terms, conditions and reservations of authority set forth in that

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United States District Court
Northern District of California

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agreement. PG&E, 776 F.Supp. 2d at 1012. BAAQMD also implements a separate SIP-

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approved Clean Air Act program under state and local law, pursuant to which it issues

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preconstruction or “Authority to Construct” (“ATC”) permits, to implement the Clean Air

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Act non-attainment NSR program. Id. Although BAAQMD implements these programs in

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parallel, the PSD and ATC requirements are distinct, with the latter being implemented

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under state and local law and the former under federal law.

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Under the PSD permitting program, new proposed major sources of pollution must

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obtain a permit before construction. See 42 U.S.C. §§ 7470–7492. A PSD permit must

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be supported by an air quality impact analysis that shows that the increased emissions

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will not cause or contribute to an exceedance of the NAAQS or air quality increments in

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the area. See 42 U.S.C. § 7475(a)(3). In addition, PSD applicants must show they will

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apply the Best Available Control Technology (“BACT”) to minimize pollution. See 42

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U.S.C. §§ 7475(a)(4), 7479(3).

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Under federal regulations, PSD permits expire when 18 months elapse from the

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time of issuance without construction. 40 C.F.R. § 52.21(r)(2). Expiration ensures that

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major polluting sources use the most up-to-date pollution control technology. See Sierra

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Club v. Franklin Cty. Power of Illinois, 546 F.3d 918, 934 (7th Cir. 2008). The 18-month

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period specified in section 52.21(r)(2) may be extended “upon a satisfactory showing that
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an extension is justified.” 40 C.F.R. § 52.21(r)(2). By contrast, BAAQMD’s state-law

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construction permit regulations allow for a longer period before expiration of an ATC.

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PG&E, 776 F.Supp. 2d at 1013; see BAAQMD Reg. 2-1-407 (ATC permit “that has not

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expired after two years, due to substantial use or renewal, shall expire after four years,”

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referred to as “the Four-Year Rule”).

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FACTUAL AND PROCEDURAL BACKGROUND
On July 24, 2001, pursuant to its delegation agreement with the EPA, BAAQMD
issued a PSD permit (“2001 PSD Permit”) combined with an ATC permit under state and

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local law (“2001 ATC Permit”), authorizing Mirant to construct a natural gas-fired power

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plant – the Contra Costa Power Plant Unit 8 – in Antioch, California. The location of the

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United States District Court
Northern District of California

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proposed power plant was less than one mile from the Antioch Dunes NWR. See PG&E,

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776 F.Supp. 2d at 1011-14.

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Because the PSD permit was a federal permit issued by BAAQMD on the EPA's

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behalf, the EPA first conducted and concluded an informal ESA § 7 consultation with

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FWS. See id. at 1023 & n.7 (citing documents submitted by Wild Equity in PG&E case

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showing that prior to issuance of PSD permit, the EPA consulted with FWS about various

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listed species, including the three Listed Species, and whether any listed species were

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likely to be adversely affected by the construction project).

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In a June 29, 2001 letter, the FWS concurred with the EPA that the three Listed

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Species in the Antioch Dunes NWR were not likely to be adversely affected by the

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issuance of the PSD permit. Based on the ATC provisions in state and local law, the

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permit document stated that it expired in two years "unless substantial use of authority

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has begun." Id. at 1013. Mirant began construction in late 2001 but permanently ceased

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construction in February 2002. Id.

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In December 2002, the EPA promulgated regulations implementing fundamental

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changes to the federal PSD program. Id. In response, BAAQMD informed the EPA that

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it could not incorporate those changes into its own regulations. Id. In March 2003, the,

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EPA revoked BAAQMD's previously delegated authority to implement the PSD program.
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At that point, the EPA was the only entity with authority to issue or to administer PSD

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permits. Id. at 1013-14.

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In August 2003, the 2001 PSD Permit expired, some 18 months after construction

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had ceased. Notwithstanding both the EPA's revocation of BAAQMD's delegated federal

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authority and the expiration of the PSD permit under federal regulations, BAAQMD wrote

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to Mirant in October 2003, reciting BAAQMD's Regulation 2-1-407 (the Four Year Rule)

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and asking for documentation that Mirant had satisfied the criteria for "substantial use"

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referenced in the original 2001 ATC Permit document. Id. at 1014. BAAQMD apparently

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accepted Mirant's demonstration of "substantial use" so that, under state and local
regulations, the 2001 ATC Permit could remain effective until 2005. Id. The distinct

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United States District Court
Northern District of California

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federal PSD permit expiration provision was not considered at that time.

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On June 21, 2004, the EPA partially redelegated PSD authority to BAAQMD. The

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redelegation agreement provided authority to issue new permits and to make

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"administrative" or "minor" modifications to existing PSD permits specifically identified in

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the redelegation agreement (which included Mirant's 2001 PSD permit). Id. In July 2005,

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BAAQMD purported to extend the 2001 construction permit again, without distinguishing

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between the PSD and the ATD components. Id.

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In 2006, PG&E acquired the project from Mirant, and on January 18, 2007, the

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California Energy Commission (“CEC”) under its power plant siting authority, authorized

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PG&E to restart construction of the newly renamed Gateway Generating Station

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("Gateway"). Id. In December 2007, PG&E notified BAAQMD that it required an

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amended ATC permit because its construction plans had changed. Throughout this

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period, PG&E continued constructing the Gateway power plant, finishing the project in

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November 2008. Id. at 1014-15.

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In 2009, the EPA and PG&E entered into negotiations regarding alleged violations

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of the Clean Air Act's PSD requirements concerning the construction and operation of

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Gateway without a valid PSD permit, as the EPA took the position that the federal 2001

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PSD Permit had expired in 2003. Id. at 1011, 1014. The negotiations resulted in a
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proposed consent decree, in which PG&E agreed to a reduction in emissions of two

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pollutants emitted by the power plant – nitrogen oxide or NOx, and carbon monoxide or

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CO – to levels that represented emissions achieved through application of BACT. Id. at

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1015.

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On September 24, 2009, the EPA filed the complaint in the PG&E case, a civil

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enforcement action pursuant to §§ 113(b)(2) and 167 of the Clean Air Act, alleging that

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PG&E had violated the Clean Air Act because its PSD permit authorizing construction

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had expired before PG&E completed construction and began operating the plant. See id.

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at 1010. Also on September 24, 2009, the EPA lodged the proposed consent decree

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United States District Court
Northern District of California

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with the court.
After filing the lawsuit, the EPA reviewed certain emissions data from Gateway to

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address concerns expressed by Communities for a Better Environment ("CBE"), which

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had intervened in the case in March 2010. Id. at 1015. Based on that review and with

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the participation of CBE, the consent decree was renegotiated (though still opposed by

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CBE). Id. at 1015-16. The second amended proposed consent decree imposed

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emissions limitations and requirements more stringent than those required under the

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2001 PSD Permit, but did not require that PG&E undergo a new PSD permitting process.

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Id. at 1015-16, 1027.

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In December 2010, some 15 months after public notice of the settlement, two

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months after the parties had filed briefs in connection with the motion for entry of the

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second amended proposed consent decree, and only three weeks before the hearing on

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the motion, Wild Equity moved to intervene in the PG&E case. Id. at 1019. Wild Equity

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sought to file a complaint alleging that the EPA's settlement and the proposed consent

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decree constituted an "agency action" under the ESA, and that the EPA had violated ESA

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§ 7(a)(2) by failing to consult with the FWS before agreeing to the terms of the negotiated

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settlement and consent decree. See id. at 1016.

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The court denied the motion to intervene, holding that a citizen may intervene as

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of right in a Clean Air Act enforcement action by the EPA only for purposes of enforcing
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compliance with the Act, but that in the case before it, Wild Equity sought to intervene to

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assert ESA claims against the EPA, and there was thus no statutory right to intervene

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under the Clean Air Act. Id. at 1016-18. The court also found that Wild Equity’s motion

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did not satisfy the requirements for intervention as of right under Federal Rule of Civil

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Procedure 24(a) – in particular that Wild Equity lacked a significant protectable interest in

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the asserted ESA § 7(a)(2) claim, as the proposed amended consent decree was not an

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“agency action.” Id. at 1018-24.

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After evaluating CBE’s objections to the proposed consent decree, the court
issued an order on March 3, 2011, denying Wild Equity's motion to intervene and
entering the second amended consent decree (“Consent Decree”). Id. at 1029. The

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United States District Court
Northern District of California

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court rejected CBE’s argument that the settlement was unfair because it did not require

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that PG&E undergo a new PSD permitting process, noting that “there is nothing that

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mandates such a process,” and “find[ing] the United States’ reasons for structuring the

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settlement in this fashion to be reasonable.” See id. at 1026-30. CBE did not appeal the

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order approving entry of the Consent Decree, and Wild Equity did not appeal the denial of

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its motion for leave to intervene.

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While the Consent Decree did not require a new or revised PSD permit for

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Gateway, it did include specific requirements for permanently incorporating the Consent

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Decree’s new emission limitations and related requirements into appropriate state and

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local permits. Those emission limitations and requirements were more stringent than the

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terms and conditions imposed in the previously issued PSD permit.

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Specifically, ¶ 6 of the Consent Decree required PG&E to petition the CEC to

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amend the Conditions of Certification for the Gateway facility to incorporate the new

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emission limitations and requirements imposed by the Consent Decree into the state

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CEC authorization process. Separately, ¶ 7 of the Consent Decree required PG&E to

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apply to BAAQMD to amend its Permit to Operate, issued under state and local law, to

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include the new emission limitations and requirements.

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PG&E subsequently submitted an application to BAAQMD, to amend the PTO to
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include the new emissions limitations and requirements as provided in the Consent

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Decree. On September 13, 2011, BAAQMD issued Gateway a PTO, including the new

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terms (“2011 Permit”). See Cplt ¶ 39. In so doing, BAAQMD acted pursuant to its own

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authority under state and local law and was not relying on delegated federal authority to

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apply 40 C.F.R. § 52.21.
On June 3, 2015, more than four years after the court denied Wild Equity's motion

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for leave to intervene in the PG&E case, and approved entry of the Consent Decree, Wild

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Equity filed the complaint in the present action, asserting violations of the ESA. Wild

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Equity alleges that the deposition of nitrogen pollution (NOx) into the Antioch Dunes
NWR, caused by fossil fuel combustion in the Gateway power plant, is adversely

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United States District Court
Northern District of California

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impacting the Listed Species. Cplt ¶¶ 48-54.
Wild Equity contends that the FWS recognizes the dangerous risk that nitrogen

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deposition can have on endangered species habitat, and that in a letter dated June 29,

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2011, the FWS conveyed concerns to BAAQMD regarding adverse effects on the three

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Listed Species caused by nitrogen deposition from the continued operation of Gateway,

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“based on changes to the [Gateway] project resulting from entering into the recent

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settlement agreement with PG&E.” FWS recommended that the EPA reinitiate ESA § 7

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consultation. Cplt ¶¶ 55-56. However, Wild Equity asserts, the EPA has not responded

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to this letter. Cplt ¶ 57.

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The complaint alleges a single cause of action against the EPA, under ESA

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§ 7(a)(2), 16 U.S.C. § 1536(a)(2), for “failure to . . . reinitiate consultation on the operation

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of the Gateway Generating Station." See Cplt ¶¶ 58-63. 2 Wild Equity asserts that the

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EPA retains a non-delegated responsibility to reinitiate consultation under § 7(a)(2), with

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regard to the issuance of “the original PSD permit to Gateway” – i.e., the 2001 PSD

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Permit – and with regard to new PSD requirements incorporated into the 2011 Permit to

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The complaint also asserts “failure to consult,” but Wild Equity has clarified that it is not
pursuing that claim, nor any claim under § 7 that the EPA had a responsibility to “initiate
consultation” with regard to the Consent Decree.
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Operate and extended through 2015. Cplt ¶¶ 60-61.
Wild Equity alleges that the EPA is violating ESA § 7(a)(2) by failing to consult with

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the FWS and by failing to ensure through consultation that its actions regarding the

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Gateway facility do not jeopardize the continued existence of endangered and threatened

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species or destroy or adversely modify designated critical habitat. Cplt ¶ 62.3 Wild

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Equity seeks declaratory and injunctive relief, an order setting aside the EPA's operating

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permit in order to halt harmful emissions of nitrogen from Gateway.
DISCUSSION

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A.

Legal Standards
1.

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United States District Court
Northern District of California

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Dismissal for lack of subject matter jurisdiction

Federal courts are courts of limited jurisdiction. Unlike state courts, they have no

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“inherent” or “general” subject matter jurisdiction. They can adjudicate only those cases

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which the Constitution and Congress authorize them to adjudicate – those involving

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diversity of citizenship or a federal question, or those to which the United States is a

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party. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 380-81 (1994). The

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burden of establishing jurisdiction rests on the party asserting jurisdiction. Id. at 377.

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Lack of subject matter jurisdiction is never waived, and may be raised by either party or

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the court at any time. Attorneys Tr. v. Videotape Computer Prods., Inc., 93 F.3d 593,

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594-95 (9th Cir. 1996).

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On a Rule 12(b)(1) motion to dismiss, the applicable standard turns on the nature

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of the jurisdictional challenge. A defendant may either challenge jurisdiction on the face

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of the complaint or provide extrinsic evidence demonstrating lack of jurisdiction on the

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facts of the case. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In evaluating a

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facial attack on jurisdiction, the court must accept the factual allegations in plaintiff's

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complaint as true. See Miranda v. Reno, 238 F.3d 1156, 1157 n.1 (9th Cir. 2001).

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The complaint appears to allege a violation of ESA § 7(d), but Wild Equity has
disavowed any such claim.
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2.

Dismissal for failure to state a claim

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A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the

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legal sufficiency of the claims alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d

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1191, 1199-1200 (9th Cir. 2003). While review is generally limited to the contents of the

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complaint, the court can also consider a document on which the complaint relies if the

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document is central to the claims asserted in the complaint, and no party questions the

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authenticity of the document. See Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007).
To survive a motion to dismiss for failure to state a claim, a complaint generally

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must satisfy only the minimal notice pleading requirements of Federal Rule of Civil
Procedure 8(a)(2). A complaint may be dismissed for failure to state a claim if the plaintiff

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United States District Court
Northern District of California

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fails to state a cognizable legal theory, or has not alleged sufficient facts to support a

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cognizable legal theory. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). While

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the court is to accept as true all the factual allegations in the complaint, legally conclusory

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statements, not supported by actual factual allegations, need not be accepted. Ashcroft

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v. Iqbal, 556 U.S. 662, 678-79 (2009).
A motion to dismiss should be granted if the complaint does not proffer enough

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facts to state a claim for relief that is plausible on its face. See Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 555, 558-59 (2007). A claim has facial plausibility when the

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plaintiff pleads factual content that allows the court to draw the reasonable inference that

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the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678. Where

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dismissal is warranted, it is generally without prejudice, unless it is clear the complaint

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cannot be saved by any amendment. Sparling v. Daou, 411 F.3d 1006, 1013 (9th Cir.

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2005).

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B.

Defendant's Motion

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The EPA seeks an order dismissing the complaint for lack of subject matter

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jurisdiction and failure to state a claim. As Wild Equity has clarified that there is no viable

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claim for “failure to consult” or “failure to initiate consultation” (with regard to the 2011

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Consent Decree, or otherwise), and no viable claim for violation of § 7(d), what remains
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are two claims under § 7(a)(2) – that the EPA failed to reinitiate consultation regarding

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the issuance of the original 2001 PSD Permit to Gateway, and that the EPA failed to

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reinitiate consultation on the new PSD requirements incorporated into the 2011 Permit to

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Operate extended through 2015.

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An agency is required to reinitiate consultation on a proposed action “where

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discretionary Federal involvement or control over the action has been retained or is

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authorized by law,” and

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(a) . . . the amount or extent of taking specified in the incidental take
statement is exceeded;

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(b) . . . new information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not previously
considered;

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United States District Court
Northern District of California

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(c) . . . the identified action is subsequently modified in a manner that causes
an effect to the listed species or critical habitat that was not considered in the
biological opinion; or

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(d) . . . a new species is listed or critical habitat designated that may be
affected by the identified action.

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50 C.F.R. § 402.16.4

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Here, Wild Equity’s basis for seeking reinitiation of consultation is that “new

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information reveals effects of the action that may affect listed species or critical habitat in
18
19
20
21

a manner or to an extent not previously considered.” 50 C.F.R. § 402.16(b). This “new
information” is a reference to the June 29, 2011 letter from FWS to the EPA. See Cplt
¶¶ 55-57; see also Doc. 27, Plaintiff’s Response to Motion to Dismiss (“Pltf’s Opp.”) at 2-4
(citing statement in FWS letter that “[n]ew scientific information relating to the adverse

22
effects of nitrogen deposition on listed species and natural ecosystems has become
23
24
4

25
26
27
28

Although § 402.16 is entitled “Reinitiation of Formal Consultation,” the reinitiation
requirement applies to both formal and informal consultation. Conservation Cong. v.
Finley, 774 F.3d 611, 618 (9th Cir. 2014) (citing Forest Guardians v. Johanns, 450 F.3d
455, 458 (9th Cir. 2006)). However, even assuming the other provisions are met, 50
C.F.R. § 402.16 does not require agencies to stop and reinitiate consultation for “every
modification of or uncertainty in a complex and lengthy project.” Id. (citing Sierra Club v.
Marsh, 816 F.2d 1376, 1388 (9th Cir. 1987)).
13

1

available since 2001 when the original permits were issued and consultation with the

2

Service was concluded”).

3

The EPA argues that both parts of Wild Equity’s reinitiation claim must be

4

dismissed. First, the EPA argues that Wild Equity cannot maintain a claim that the EPA

5

failed to reinitiate consultation regarding the issuance of the original 2001 PSD Permit to

6

Gateway, because the 2001 Permit expired in August 2003 and cannot be the “agency

7

action” over which the EPA retains discretionary involvement or control or upon which

8

any reinitiation duty can be derived, and Wild Equity has identified no other “agency

9

action” that could provide a basis for the claim.
The EPA contends that the purpose of reinitiation of consultation is to ensure that

11
United States District Court
Northern District of California

10

the underlying agency action addressed in the initial consultation remains compliant with

12

ESA Section 7, notwithstanding new information or changed circumstances such as a

13

new species listing or critical habitat designation. See 50 C.F.R. § 402.16. The EPA

14

asserts that it makes no sense to require a consultation by the EPA with the Service on

15

the question of whether old actions, which no longer govern anything, have any effect on

16

endangered species or their habitat. The EPA also contends that any claim of failure-to-

17

initiate is time-barred, under the applicable statute of limitations, 28 U.S.C. § 2401(a),

18

and that it thus does not retain discretion to modify expired federal PSD permits for the

19

benefit of listed species.

20

Second, the EPA similarly asserts that Wild Equity cannot maintain a claim that

21

the EPA failed to reinitiate consultation on the new PSD requirements incorporated into

22

the 2011 Permit to Operate, because Wild Equity has failed to identify an “agency action”

23

over which there is discretionary Federal involvement or control. In particular, the EPA

24

argues, because the 2011 PTO was issued by BAAQMD, not by the EPA, there is no

25

federal action upon which Wild Equity can seek reinitiation of consultation. The EPA also

26

contends that because the incorporation of emission limitations and requirements was a

27

direct result of the implementation of the Consent Decree, this part of the claim amounts

28

to an attempt to evade the res judicata effect of the ruling in the PG&E decision that
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2

consultation was not required on the Consent Decree.
In opposition, Wild Equity argues that the relevant “agency action” here is not the

3

issuance of a particular permit, but rather the emissions of the Gateway power plant,

4

which Wild Equity claims are “authorized” by the EPA through the EPA’s “permitting

5

activities as a whole.” Wild Equity cites the examples in the definition of "action" in 50

6

C.F.R. § 402.02(c)-(d), which include "the granting of . . . permits" and "actions directly or

7

indirectly causing modifications to the land, water or air."

8

In addition, Wild Equity asserts that even if the 2001 Permit has lapsed, the terms
of the Consent Decree “resurrected” it. Wild Equity contends that since the entry of the

10

Consent Decree, both the EPA and its delegated agent in the Bay Area, BAAQMD, have

11
United States District Court
Northern District of California

9

issued permits to Gateway that demonstrate that the facility’s PSD permit is still in effect.

12

Wild Equity claims that BAAQMD issues a permit to Gateway every year called the

13

“Authority to Construct/Permit to Operate” (“ATC/PTO”), with the most recent such permit

14

(issued on October 16, 2014) allowing Gateway to operate during 2015. Wild Equity

15

asserts that the 2015 ATC/PTO states that portions of the permit are derived from the

16

EPA’s PSD permit, and contends that those portions specifically authorize nitrogen

17

emissions, and that the ATC/PTO contains a separate provision that specifically limits the

18

decree-imposed pollution control provisions that apply to Gateway beyond what is

19

permitted through the PSD permit. Wild Equity argues that these requirements emanate

20

from Gateway’s PSD permitting requirements rather than organically from the Consent

21

Decree itself. Wild Equity claims that if PSD permitting requirements either no longer

22

exist, or were supplanted by the organic requirements of the Consent Decree, the

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ATC/PTO would not include this express distinction.

24

Wild Equity also contends that the EPA retains “discretionary involvement or

25

control" over its permitting authority for the Gateway plant, so that it can act to adjust

26

emissions at the plant or impose mitigation if the consultation shows that changes must

27

be made to protect the three Listed Species. Wild Equity cites the PG&E decision, where

28

the court noted that the EPA indicated at the hearing on Wild Equity’s motion to intervene
15

1

that it "retains the authority to seek to modify the [c]onsent [d]ecree after it [was] issued."

2

See PG&E, 776 F.Supp. 2d at 1024 n.9. Thus, Wild Equity argues, to the extent the

3

Consent Decree would need to be amended to account for any emissions changes, the

4

EPA has "conceded" it has that ability.

5

Wild Equity argues that the applicable law shows that the EPA does retain such

6

discretion. In support, Wild Equity cites Turtle Is. Restoration Network v. Nat’l Marine

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Fisheries Serv., 340 F.3d 969, 977 (9th Cir. 2003); Natural Res. Def. Council v. Jewell,

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749 F.3d 776, 783-85 (9th Cir. en banc), cert den. sub nom Glenn-Colusa Irrigation Dist.

9

v. Natural Res. Def. Council, 135 S.Ct. 676 (2014); Cottonwood Envtl. Law Ctr. v. U.S.

10

Forest Serv., 789 F.3d 1075, 1086 (9th Cir. 2015).

United States District Court
Northern District of California

11

The court finds that the motion must be GRANTED as to both parts of Wild

12

Equity’s § 7(a)(2) claim. The claim that the EPA failed to reinitiate consultation regarding

13

the issuance of the original PSD permit to Gateway must be dismissed, because there is

14

no authorized agency action upon which the EPA could reinitate consultation.

15

A claim that an agency has violated § 7(a)(2) necessarily entails an allegation that

16

the agency undertook an "agency action," and that such action was improper because it

17

was taken without the agency's having first engaged in consultation. See Ctr. for

18

Biological Diversity v. Chertoff, 2009 WL 839042 at *5 n.2 (N.D. Cal., Mar. 30, 2009).

19

While the term “action” in 50 C.F.R. Part 402 is broadly defined to include “all activities or

20

programs of any kind authorized, funded, or carried out, in whole or in part, by Federal

21

agencies . . . .” 50 C.F.R. § 402.02, nothing in the ESA or the regulations suggests that

22

power plant emissions can be considered “activities or programs . . . authorized or carried

23

out” by the EPA or any other federal agency. The subsequent effect of a prior agency

24

action is not itself an "agency action" that triggers ESA § 7 consultation. See Karuk

25

Tribe, 681 F.3d at 1021; Cal. Sportfishing Prot. Alliance v. FERC, 472 F.3d 593, 597-98

26

(9th Cir. 2006).

27
28

Although Wild Equity insists that the agency “action” as to which it seeks
reinitiation of consultation is not a “permit,” the court finds that the only possible activity or
16

1

program that could be considered an “action” of the EPA is the issuance of the 2001

2

Permit. However, because the 2001 Permit expired in 2003, no “discretionary Federal

3

involvement or control over the action has been retained or is authorized by law” as

4

required under 50 C.F.R. § 402.16.5 The fact that the EPA stated at a hearing in the

5

PG&E case that it “retains the authority to seek to modify the [C]onsent [D]ecree after it is

6

entered” is irrelevant to the question whether it retains discretionary involvement or

7

control over an “action” as to which Wild Equity can legitimately seek reinitiation of

8

consultation, not least because the Consent Decree is not an “agency action” under the

9

ESA. PG&E, 776 F.Supp. 2d at 1023.
Further, the question of appropriate additional emission limits, and the mechanism

10

United States District Court
Northern District of California

11

for imposing such limits, was addressed and resolved through the entry of the Consent

12

Decree, which in turn resolved the Clean Air Act enforcement action filed by the EPA.

13

Thus, any attempt to compel the EPA to consult on the NOx emission rates that were set

14

in the Consent Decree can be viewed only as an attempt to relitigate an issue that was

15

resolved by the PG&E court, which found the Consent Decree and its limits on emissions

16

to be fair, adequate, and reasonable, and further found nothing that mandated a new

17

permitting process. See PG&E, 776 F.Supp. 2d at 1024-27.
Neither the entry of the Consent Decree nor the denial of Wild Equity’s motion to

18
19

intervene was ever challenged on appeal. Wild Equity has stated no basis for vacating or

20

amending the Consent Decree to impose more stringent restrictions on the allowed

21

emissions, and no basis for a new action case that in essence seeks to attack the

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24
25
26
27
28

5

In addition, even assuming Wild Equity could identify a federal PSD action that
might be subject to review, any assertion that the EPA violated the ESA in conjunction
with the issuance of a federal PSD permit would necessarily challenge an alleged EPA
final action taken pursuant to the Clean Air Act. Such actions are subject to judicial
review only in the applicable court of appeals, not the district court. See Harrison, 446
U.S. at 586; Sierra Pac. Power Co. v. EPA, 647 F.2d 60, 62 n.2 (9th Cir. 1981)
(recognizing that Clean Air Act § 307(b)(1) encompasses “any final EPA action”). Thus,
the court would lack jurisdiction to adjudicate any such claim. See City of Tacoma v.
Taxpayers of Tacoma, 357 U.S. 320, 336 (1958); Carpenter v. Dep’t of Transp., 13 F.3d
313, 316 (9th Cir. 1994).
17

1

provisions of the Consent Decree in the guise of demanding that the EPA "reinitiate"

2

consultation as to the very same pollutants that were at issue in the prior case.

3

The incorporation of PSD permit conditions into state and local agency permits

4

does not mean that the expired 2001 PSD permit is still in effect. To the extent that Wild

5

Equity is now arguing that certain elements of BAAQMD's PTO are not, in fact, "new PSD

6

requirements," but rather are the same requirements from the 2001 permit – that the

7

admittedly expired PSD permit somehow retains sufficient vitality upon which to premise

8

an ESA reinitiation claim – a later permitting action taken by a separate local authority

9

under state and local law cannot legally "resurrect" an expired federal PSD permit.

10

The 2014 PTO, the most recent PTO issued by BAAQMD, may (as Wild Equity

United States District Court
Northern District of California

11

claims) cite certain limits that were first established in the 2001 combined ATC/PSD

12

permit. However, this does not mean that the 2001 expired permit still governs

13

Gateway's operations or that the EPA has discretion to reopen the expired PSD permit to

14

modify it for the benefit of the species. The requirements of BAAQMD's 2014 PTO are

15

factually and procedurally distinct from those of the expired 2001 permit. More

16

importantly, for purposes of ESA § 7, the key question is whether there is a federal

17

agency "action," not whether a later non-federal permit incorporates substantially the

18

same requirements included in a prior federal action.

19

With the expiration of the 2001 PSD permit, the combined ATC/PSD permit for

20

Gateway no longer served as a PSD permit. That is, the PSD element of the prior

21

combined permit expired; and, as the EPA argues, following the entry of the Consent

22

Decree, the PSD permit for Gateway has not been renewed, reissued, or otherwise

23

revived. Even though the PSD portion of the prior permit expired, the state-law ATC

24

component of the combined permit remained in effect, and its provisions were later

25

carried over in the BAAQMD’s PTOs for Gateway. The BAAQMD’s actions in continuing

26

to implement the state-law ATC and the subsequent issuance of the PTOs for Gateway

27

under state and local law do not serve as PSD permitting actions. Therefore, the

28

BAAQMD’s 2014 PTO does not show a continuing effect of, or EPA’s discretionary
18

1
2

control over, the expired 2001 PSD permit.
Nor is “discretion” itself an "action" that can resurrect the 2001 permit. Wild Equity

3

several times suggests in its opposition that the mere existence of the EPA’s “permitting

4

authority,” “permitting activities as a whole,” or the “PSD program” generally constitutes

5

the “action” that gives rise to an EPA obligation to reinitiate consultation, and also

6

suggests that the existence of "discretion" to reopen or modify a PSD permit, generally,

7

shows that EPA retains discretionary control over the 2001 PSD permit here.

8

The duty to engage in ESA consultation is triggered only by an affirmative agency

9

act or authorization; the mere existence of unexercised authority to take additional action
is insufficient. See Cal. Sportfishing, 472 F.3d at 599; Karuk Tribe, 681 F.3d at 1021).

11
United States District Court
Northern District of California

10

“[E]ven where an agency has discretion to change the terms of an existing license, the

12

agency has no duty to consult in light of such retention of discretion, when it has not

13

exercised such discretion.” Ellis v. Bradbury, 2014 WL 1569271, at *12 (N.D. Cal. Apr.

14

18, 2014) (citing Cal. Sportfishing, 472 F.3d at 594-95). Put another way, the

15

consultation duty is triggered only when the agency affirmatively exercises that discretion

16

to act. See Ctr. for Biological Diversity v. Envtl. Prot. Agency, 65 F. Supp. 3d 742, 758

17

(N.D. Cal. 1014).

18

The cases cited by Wild Equity are inapposite. In Turtle Is., 340 F.3d at 977, the

19

court held that discretion remains where permitting activity has an "ongoing and lasting

20

effect." However, the agency action was the “continued issuance of fishing permits,” and

21

there was no question that the permits at issue were currently governing the fishing

22

vessels’ activities and that the agency was continuing to issue permits.

23

In Jewell, 749 F.3d at 783-85, the court held that even though the government

24

and the parties had entered binding settlements controlling the amount of water

25

government must provide to the parties, government retained at least "some discretion"

26

to act to protect species as result of ESA consultation. However, the relevant action was

27

the Bureau of Reclamation’s renewal of long-term water delivery contracts, and there was

28

no question that the contracts were in effect at the time of the challenge and were
19

1
2

governing water delivery operations.
In Cottonwood, 789 F.3d at 1086, the court observed that nothing in the ESA or its

3

implementing regulations limits reinitiation to situations where there is "ongoing agency

4

action." However, the agency action was the amendment of current forest plans to

5

incorporate management standards for Canada lynx which continue to be applied at the

6

site-specific project level. The question, as in Turtle Is. and Jewell, was whether the

7

agency retained sufficient discretionary involvement or control over existing agency

8

action. None of these cases involved a situation (as here) where the only relevant

9

agency action targeted by the plaintiff previously expired and the agency took no further

10

United States District Court
Northern District of California

11

affirmative action.
The claim that the EPA failed to reinitiate consultation regarding the issuance of

12

the 2011 Permit to Operate also fails, because the 2011 PTO was issued by BAAQMD,

13

not EPA, see Cplt ¶ 39, and it was issued under state and local law. The § 7(a)(2)

14

consultation requirement applies only to actions authorized, funded, or carried out by

15

federal agencies. See 16 U.S.C. § 1536(a)(2); see also Nat’l Ass'n of Home Builders v.

16

Defenders of Wildlife, 551 U.S. 644, 653 (2007) (the ESA’s § 7(a)(2) consultation

17

requirement “does not apply to permitting decisions by state authorities”).

18

Wild Equity appears to be attempting to argue around this barrier by claiming that

19

BAAQMD incorporated “certain PSD requirements” into the 2011 Permit to Operate.

20

However, BAAQMD’s PTO – which is based solely on state and local law – is not imbued

21

with the character of a federal CAA PSD permit by virtue of its inclusion of requirements

22

that might otherwise have been imposed through a PSD permitting process. As

23

explained above, while PSD permitting is governed by the federal regulatory program in

24

the Bay Area, the BAAQMD implements a separate state implementation plan-approved

25

Clean Air Act program under which it issues ATC permits.

26

That is, the PSD and ATC programs are distinct, with the latter being implemented

27

under state and local law, and the former being implemented under federal law. The

28

ESA § 7 consultation requirement “does not apply to permitting decisions by state
20

1

authorities.” Home Builders, 551 U.S. at 653. While the BAAQMD may have a practice

2

of issuing combined permits, that cannot federalize the state and local components of the

3

permit for purposes of ESA § 7's focus on federal agency actions.

4

The Consent Decree imposed new emission limitations and requirements for

5

certain pollutants, which were more stringent than the terms and conditions included in

6

the previously issued 2001 PSD/ATC permit. See PG&E, 776 F. Supp. 2d at 1015-16.

7

However, it is equally clear that the Consent Decree did not require or otherwise result in

8

issuance of a new or revised federal PSD permit for the Gateway facility. See id. at

9

1027. Instead, PG&E was required to seek amendment of its applicable state and local
permits, as well as to include the new emission limitations and requirements as part of its

11
United States District Court
Northern District of California

10

future permit application to BAAQMD. The Consent Decree did not require any additional

12

federal permitting action, under PSD or otherwise, and no such action has occurred, and

13

Wild Equity cannot manufacture a federal action for purposes of an ESA § 7 claim where

14

no such action exists.

15

To the extent that Wild Equity is arguing that the EPA was required to revise the

16

PSD components of the 2001 PSD/ATC permit or issue a new PSD permit instead of

17

imposing new emission limitations and requirements through the Consent Decree, the

18

PG&E court already considered and rejected such an argument from CBE. See PG&E,

19

776 F. Supp. 2d at 1027. Thus, despite Wild Equity's attempt to characterize the

20

emission limitations and requirements resulting from the Consent Decree as “PSD

21

requirements,” it is clear from the PG&E decision and the Consent Decree that no new

22

PSD permitting process occurred and there is no federal agency action related to the

23

2011 Permit to Operate that could trigger ESA § 7(a)(2) consultation.

24

Finally, Wild Equity asserts, the applicable regulations also state that the EPA has

25

discretion to amend PSD permitting as necessary. In support, Wild Equity cites 40

26

C.F.R. § 71.7(f)(1)(iv). This provision does not help Wild Equity’s position, as it relates to

27

reopening and revising of permits prior to their expiration.

28

Wild Equity has not identified a final "agency action" that can be challenged, but
21

1

even if it had, a claim challenging a final EPA action can only be pursued in the form of a

2

petition in the court of appeals. See Cal. Dump Truck Owners Ass'n, 784 F.3d 500, 506-

3

07 & n.8 (9th Cir. 2015) (citing 42 U.S.C. § 7607(b)(1)). That would include any

4

challenge to issuance of a PSD permit.
CONCLUSION

5
6

In accordance with the foregoing, the EPA’s motion is GRANTED. Wild Equity

7

requests leave to amend the complaint “to conform it with [the] response to EPA’s motion

8

to dismiss.” Wild Equity’s Opp. at 5 n.3. However, Wild Equity offers no new proposed

9

facts, and the court finds that amendment would be futile. Accordingly, the dismissal is

10

WITH PREJUDICE.

United States District Court
Northern District of California

11
12

IT IS SO ORDERED.

13

Dated: November 20, 2015

14
15

__________________________________
PHYLLIS J. HAMILTON
United States District Judge

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