A challenge to a large power plant in western Riverside County has been rejected by the Ninth U.S. Circuit Court of Appeals, which ruled that the plaintiffs could not contest the project in federal district court.

Romoland School District, two environmental justice groups, a collection of labor unions and two residents sued the Inland Empire Energy Center (a subsidiary of General Electric) and the South Coast Air Quality Management District to block the 810-megawatt, gas-fired power plant in an unincorporated area south of Perris. The project won approval as a 670-megawatt plant from the air district and the California Energy Commission in 2003. The Commission in 2005 approved a modified project that increased power output to 810 megawatts through the use of better turbines.

In April 2006, the school district and other project proponents filed suit in U.S. District Court for the Central District of California. They argued the power plant violated the Clean Air Act's "new source review" provisions because the project received emissions credits for which it was not eligible, and because the plant would emit more fine particulate matter than permitted by an air district rule. Their concern was that air pollution from the power plant could harm the health of children at Romoland Elementary School, located 1,100 feet from the project site. They sought an injunction to halt the project and civil penalties from Inland Empire Energy Center (IEEC) and the air district.

District Court Judge Ronald Lew rejected the requested preliminary injunction and in August 2006 dismissed the two causes of action against the IEEC. Later that year, District Judge Andrew Guilford dismissed the two causes of action against the air district at the request of the plaintiffs, who wanted to move to the appellate court level.

The primary issue at the Ninth Circuit was whether the district court could consider the legal challenge, as Judge Lew dismissed the case for lack of jurisdiction. The plaintiffs argued their suit was brought under the citizen suit provisions of the Clean Air Act's Title I, which concerns new source reviews and other preconstruction requirements. However, the IEEC and South Coast argued the suit was really a challenge under Title V, which concerns permitting schemes such as the one the air district employed here. The two different portions of the Clean Air Act provide different avenues to court. Challenging a permit issued according to Title V requires an appeal to the Environmental Protection Agency administrator, and then judicial review beginning at the circuit court level. The plaintiffs in this case had a Title V challenge that the district court properly dismissed, the Ninth Circuit determined.

"We do not opine upon the general contours or scope of the citizen suit provision of 42 U.S.C. 7604," Judge Ronald Gould wrote for the three-judge Ninth Circuit panel, referring to a portion of the Clean Air Act. "We hold only that where a state or local air pollution control district has integrated preconstruction requirements of Title I within the permitting requirements of Title V and a permit is issued under that integrated system, a claim that the terms of that permit are inconsistent with other requirements of the Clean Air Act may only be brought in accordance with the judicial review procedures authorized by Title V of that Act, 42 U.S.C. § 7661-7661f, and may not be brought in federal district court under the Act's citizen suit provisions, 42 U.S.C. § 7604. Because plaintiffs' action was brought in an inappropriate forum under an inapplicable CAA [Clean Air Act] provision in an untimely avenue of protest, the district court was without jurisdiction to hear it."

In a concurring opinion, Judge J. Clifford Wallace wrote that he agreed with the outcome of the case but said the Ninth Circuit should not have considered the appeal because the plaintiffs voluntarily dismissed their case against the air district.

Construction of the power plant finished last year and the plant is now in the testing stage.

The Case:
Romoland School District v. Inland Empire Energy Center, LLC, No. 08 C.D.O.S. 14167, 2008 DJDAR 17047. Filed November 18, 2008.
The Lawyers:
For Romoland: Suma Peesapati, Adams, Broadwell, Joseph & Cardozo, (650) 589-1660.
For IEEC: Robert Wyman, Latham & Watkins, (213) 485-1234.
For South Coast Air Quality Management District: Bradley Hogin, Woodruff, Spradlin & Smart, (714) 558-7000.