AIR QUALITY
CBE attorneys actively work to improve air quality for all Californians. In addition to filing cases, CBE attorneys sit on the South Coast Air Quality Management District’s Air Quality Management Plan work group, various SCAQMD Rulemkaing work and watchdog the air districts and agencies to ensure they are appropriately enforcing the Clean Air Act. Additionally, CBE attorneys work on drafting and advocating for local and statewide legislation aimed at improving air permitting and enforcement in our communities and statewide.
CBE v. Contra Costa County and Phillips 66 (2015)
In March 2015, CBE sued Phillips 66 and Contra Costa County alleging illegal approvals of a tar sands refining project that could worsen pollution, climate, and refinery and rail explosion hazards, and an Environmental Impact Report (EIR) that hid the project from the public and failed to mitigate its significant environmental impacts.
The action follows the February 3, 2015 approvals for Phillips’ ‘Propane Recovery Project.’ At issue is environmental disclosure and mitigation for a switch to new oil feedstocks that cause the most extreme extraction, transport, and refining impacts of any petroleum known. Phillips 66 told investors about its plan to switch over its California refineries to two of these oils—‘heavy crude’ from the Canadian tar sands region and shale oil transported by rail. However, the company sought approvals for the rail delivery, wharf delivery, processing, and byproduct propane handling changes needed to implement its plan via at least four separate environmental reviews. That includes the pending Rail Spur Extension Project at Phillips 66’s refinery in Santa Maria in San Luis Obispo County, the other end of this crude by rail project. CBE’s legal department has taken the lead in participating with other allied organizations in commenting on the environmental review of that project. None of these reviews discloses the full scope of the plan, the planned change in crude feedstock quality, or the environmental impacts of this crude switch.
This Phillips 66 project is part of an industry-wide switch to new oil supplies that is playing out across the region as Californian and Alaskan crude supplies dwindle. Other parts include the Kinder Morgan crude by rail terminal in Richmond and new and modified facilities to deliver and refine oils from new sources planned by Valero in Benicia, Wespac in Pittsburg, Tesoro in Avon near Martinez, Shell in Martinez, and Chevron in Richmond.
The Bay Area Air Quality Management District (BAAQMD) identified a need for new regional air quality policies to ensure against increased refinery emissions from changing crude feed quality since at least 2012. But despite that admission new policy requirements have languished. A February 27, 2015 comment by 25 groups including CBE called on the BAAQMD to stop oil companies from ‘gaming’ the rules by rushing oil switch projects that could commit the region to new emissions before the needed new policy is in place. In part because of such gaps in environmental protection, EIRs are required by law to disclose and mitigate all reasonably foreseeable significant impacts of proposed projects.
CBE, Physicians for Social Responsibility, Natural Resources Defense Council Team Up to Urge EPA and AQMD to Decrease Southern California’s Air Pollution.
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.
NRDC v. EPA/AQMD (Nonattainment Fee Rule)
The South Coast Air Basin is one of the most polluted air basins in the country, one of only two areas classified as “extreme” nonattainment for ozone. For such harmful, persistently dangerous air pollution levels, the Clean Air Act’s section 185 requires that when a region has failed to attain the standards by a specified deadline, major stationary sources in the area must pay a “nonattainment fee” on excess emissions. For the South Coast, 2010 was the “attainment” year for 1-hour ozone. The Act requires that a state with “severe” or “extreme” non-attainment areas adopt a revision to its SIP that would provide for the collection of the section 185 fee. In 2011, both the San Joaquin Valley and the South Coast AQMD adopted rules that they argued were “equivalent” to the fee, but did not require sources to pay the fee. Instead, AQMD’s rule, Rule 317, exempts most industrial sources in the L.A. basin by purporting to collect equivalent funds from permitting fees collected under existing District rules. In February 2013 we and NRDC filed suit against EPA challenging EPA’s approval of Rule 317 because 1) it undermines the benefits of the section 185 fee program and 2) it opens the door to EPA waiving State Implementation Plan requirements. Our allies sued over the San Joaquin rule. We are preparing to brief the case.
Communities for a Better Environment v. U.S. EPA/SCAQMD (Rule 1315)
In the South Coast, the federal Clean Air Act requires that new pollution sources have pollution offset credits prior to beginning construction. SCAQMD keeps an internal bank of offset credits so that essential public services like hospitals can operate regardless of whether they can afford to buy offsets on the market. Since 2006, SCAQMD has also been attempting to sell offsets to new gas-fired powerplants, despite the bank having a negative balance.
In 2012, EPA approved SCAQMD’s Rule 1315, a rule that creates and keeps track of internal bank offset credits. Rule 1315 looks back to 1990 and changes the balances in the internal bank. Rule 1315 violates the Clean Air Act offsetting rules in several ways. For example, it does not require AQMD to review any documents showingthe emissions that were actually reduced. CBE and CCAT filed suit in the 9th Circuit to challenge the validity of this rule under federal law.
CCAT v. EPA/Sentinel/SCAQMD
Before Rule 1315 stocked its internal bank (as described in CBE v EPA (Rule 1315), above) SCAQMD wanted to sell internal bank offsets for a powerplant near Palm Springs, called CPV Sentinel. To do so, AQMD lobbied for a law, AB 1318 (V. M. Perez), which orders it to identify facilities (including minor sources) that shut down since 1999, count the emissions reduced as pollution credits, and sell them to Sentinel.
Before the AB 1318 credits can have federal effect, EPA must evaluate whether they meet the Clean Air Act’s validity requirements. EPA approved the SIP amendment on April 20, 2011. CBE and CCAT sued and prevailed in the 9th Circuit in July 2012. In November 2012, EPA again approved the Sentinel rule. The new rule commits many of the same errors as the last rule. CBE and CCAT, therefore, sued again
CBE and WildEarth Guardians Tell EPA to Strengthen Carbon Monoxide Standards
Carbon monoxide (CO) is lethal and also contributes to global warming. The current 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. Since then, numerous studies have found that these standards are inadequate to prevent impacts to human health. In 2011, after CBE won a case requiring EPA to update the CO NAAQS, EPA re-adopted the same CO NAAQS despite a wealth of scientific evidence indicating that stronger standards are needed to protect sensitive receptors including developing fetuses and low-income communities. Even EPA’s own Clean Air Scientific Advisory Committee noted its concern that EPA was “underestimating CO exposure among some vulnerable groups, especially persons with low income status.” CBE, WildEarth Guardians and Sierra Club sued in the U.S. Court of Appeals for the D.C. Circuit. We co-counseled with the University of Denver Sturm College of Law Environmental Law Clinic.
The D.C. Circuit denied our appeal. While the decision is a serious blow to communities living with CO emissions, it gives strong guidance on how EPA’s next review of the CO NAAQS, which should begin in 2015, must unfold.
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. Click here to read about the case
LAND USE AND TOXICS
CBE/Sierra Club v. MTC/ABAG (Plan Bay Area)
Environmental justice communities in the Bay Area are suffering the cumulative impacts of mobile and stationary sources. Near-freeway communities are particularly affected by freight transport. Through community-based research, CBE has documented vast numbers of heavy trucks on the streets of East Oakland, and further documented elevated levels of particulate matter, which our members breathe every day. One of the best ways for these communities to address freight transport impacts is the long-term planning process that is designed to reshape the way society uses all forms of transportation to be sustainable. In its July 2013 regional transportation plan, the Metropolitan Transit Commission (“MTC”), unfortunately, failed entirely in its duty to address freight transport impacts. It also failed to address GHGs and economic displacement impacts from its long-term plan. Along with Sierra Club represented by Earthjustice, we filed suit in Alameda Superior Court on August 19, 2013.
Exide
Exide Technologies is an industrial producer of lead-acid batteries. CBE and its members have long been concerned about pollution from the Exide facility in Vernon, in Southeast LA, because evidence suggests it is a source of many different dangerous pollutants including lead, arsenic, benzene and 1-3 butadiene. Since the 1980s, Exide has been cited for numerous violations of various federal and state environmental laws, including Proposition 65, RCRA and the Clean Air Act. In April, 2013The Department of Toxics Substances Control (“DTSC”) found that Exide presented an immediate danger to the community, and as a result, it ordered Exide to shut down temporarily. Exide, in turn, declared bankruptcy and sued DTSC claiming that the agency acted outside of its authority in issuing the order for temporary shutdown. Exide successfully obtained an injunction against DTSC in Los Angeles Superior Court, prohibiting the agency from enforcing its order. DTSC has now settled that case and is involved in Bankruptcy proceedings relating to funds needed for cleanup and other remedial measures.
CBE has engaged in various advocacy tactics to ensure that those who bear the highest health burden from Exide’s chronic violations are heard and meaningfully considered by the oversight agencies tasked with protecting their health and wellbeing.
CBE has succeeded in using legal advocacy, combined with technical expertise and on-the-ground organizing efforts to support SCAQMD in drafting and adopting new Rule amendments to prevent Exide, and other large lead acid battery recycling facilities from emitting large quantities of lead, arsenic, and other toxic and heavy metals into the air. Together with allies, CBE has worked to ensure that SCAQMD does not allow Exide to continue to operate without adequate monitoring, reporting and pollution control equipment. In these efforts, CBE has represented its members in the South East LA region before the SCAQMD hearing board, and has pushed the Hearing Board and SCAQMD to exercise their authority to the fullest extent possible, in order to prevent any further harm from this facility.
CBE v. City of Oakland / Stewart (Crematorium)
In August 2011, the City of Oakland, with no notice to community, no environmental review and no mitigation, issued a permit to a crematorium to cremate up to 3,600 bodies every year in East Oakland. CBE learned of the decision long after it had occurred, and mounted a massive organizing campaign. As part of the campaign, CBE asked the City to issue a formal decision that crematoriums are classified as “Extensive Impact Civic Activities”, rather than “General Manufacturing” activities. Extensive Impact designation would require a Conditional Use Permit (“CUP”), and would allow the facility to be located anywhere in the City. By contrast, General Manufacturing can only occur in East and West Oakland, and unless it is within 300 feet of a residential use, no CUP or even notice is required.
The City decided that all human crematoriums are General Manufacturing. This decision means that crematoriums can only be located in the parts of Oakland that are predominantly comprised of residents and communities of color, and so long as they are more than 300 feet from any residence, no notice, permit conditions, or environmental review are required. It is a sudden departure from the City’s written history of allowing all communities to host end of life uses, and was made without proper procedure. CBE sued the City for its error in classifying the crematorium as it has, in Alameda Superior Court in December 2013.
CLIMATE AND ENERGY
No More Power Plants!
CBE’s attorneys actively work on behalf of CBE and the California Environmental Justice Alliance at the California Public Utilities Commission, and in court, to fight against the construction and use of natural gas power plants, and to for viable alternatives like distributed renewable generation in low-income communities of color in California.
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.
CBE is involved in several California PUC proceedings:
PUC Long Term Procurement Plans
Much of the state’s electricity is provided by investor-owned utilities: Southern California Edison (LA area), Pacific Gas & Electric (Bay area) & SDG&E (San Diego area.) To buy power from new plants, these utilities must have their contracts approved by the California Public Utilities Commission (PUC). The PUC generally will approve a contract for new gas-fired electric generation so long as the Long Term Procurement Plan (“LTPP”) shows there is a need for it. The LTPP is a PUC proceeding that determines how many new megawatts of gas-fired generation will be built to satisfy a utility’s projected demand.
2010 LTPP: CBE and our allies achieved startling success in the 2010 LTPP, including obtaining a PUC decision stating that utilities must always attempt to get electricity from preferred resources (Energy Efficiency, Demand Response, Renewables) before they procure from gas-fired powerplants, and obtaining a decision that the utilities had no basis to ask for authority for long term contracts with new power plants! We received intervenor compensation for work performed by CBE attorneys and experts. This matter is now concluded.
2012 LTPP: CBE is a party as part of CEJA, which allows us to work on all three utility procurement plans. In the first SDG&E part of the proceeding, on March 28, 2013 the PUC denied two new power plants (Quail Brush & Pio Pico) and made a finding that San Diego might have a local need of 298MW starting in 2018. The PUC subsequently approved the Pio Pico proceeding, despite clear evidence that it is not needed. In the initial Edison part of the proceeding, we received a decision that the LA area will need to procure at least 1,000MW of new generation. We were credited with keeping that number below 5,000MW, but that is still far more than we believe is necessary.
In addition to considering basic procurement needs, the PUC conducted a separate analysis (Track 4) of the impact retirement of the San Onofre Nuclear Generating Station (“SONGS”) will have on Edison and SDG&E. Our evidence showed that no new procurement was needed to address SONGS retirement, because resources like energy efficiency and rooftop solar are hugely undercounted. These resources exist and will continue to expand, but the agencies refuse to include them in their calculations of local need. In addition, we showed that any need could be met with preferred resources, so no new gas should be authorized.
The PUC unfortunately issued a decision directing Edison to procure 500-700 MW and SDG&E to procure 500-800 MW. While this must include at least 600 MW of energy storage and “preferred resources”, all the rest will be procured through “All-Source” bids, and bilateral deals, where the utility can cherry-pick whatever gas plant it prefers. We are continuing to participate to affect the utilities procurement of these resources. We are co-counsel with the Golden Gate Environmental Law and Justice Clinic.
2014 LTPP: CBE is participating in this proceeding as part of CEJA. It began in March, and our big-picture goal, in addition to limiting all new gas procurement, is to institutionalize a requirement that the utilities focus procurement of renewable resources in EJ communities. We are co-counsel with the Golden Gate Environmental Law and Justice Clinic.
PUC General Rate Case Safety Consideration
This spring, the PUC opened a proceeding to set rules about how each publicly-owned utility will address safety. This comes partly in response to the San Bruno explosion. CBE intervened in the proceeding with the goal of institutionalizing the “Safety Case Regulatory Regime” – the protocol advocated by the Chemical Safety Board in response to the Richmond Chevron fire. We are trying to insert the concepts of inherently safer systems into the conversation that is focused almost exclusively on an insurance-type risk analysis based on monetary, not human or equitable, concerns.
Implementing SB 43
Senate Bill (“SB”) 43, which was signed into law on September 28, 2013, requires electric utilities to provide tangible renewable energy benefits to environmental justice communities. CBE is representing the California Environmental Justice Alliance at the California Public Utilities Commission to make sure that the utilities meet their obligations to our communities. SB 43 requires the State’s three major utilities—Pacific Gas & Electric in the Bay Area, San Diego Gas & Electric in San Diego, and Southern California Edison in the Los Angeles area—to enact “Green Tariff Shared Renewable (“GTSR”) Programs” that enable electricity customers to participate directly in offsite renewable generation facilities. The law is intended to make renewable energy accessible to customers who would not otherwise be able to purchase electricity from renewable sources—renters who cannot install rooftop solar, or individuals with low credit scores who do not qualify for renewable installations, for example. Additionally, SB 43 encourages support for community renewables programs, which allow customers to elect to purchase energy from a specific renewable facility in their community. These programs are important to environmental justice communities, whose voices are so often ignored in the siting and development of dirty, fossil fuel-powered generation facilities. Importantly, SB 43 carved out one-sixth of the GTSR Program capacity for the most impacted and disadvantaged communities in the state. This means that out of the 600 MW allotted for the program, 100 MW must be in environmental justice communities. Each of the utilities is required to submit their proposed GTSR Programs to the PUC, which, after hearing input from interested parties, must issue a decision by July 1, 2014. On behalf of the California Environmental Justice Alliance, CBE attorneys have intervened in the PUC proceedings to ensure that the environmental justice provisions of SB 43 are adequately and effectively implemented, so that the communities that have been historically overburdened with pollution from fossil fuel energy generation can finally have a chance to support clean, renewable sources of electricity in their neighborhoods.