- Loss of Power? AQMD rules Designed to Spur Development of Newer, Cleaner Electrical Power Plants Recently Vacated in LA Superior Court
- September 10, 2008 | Author: Olivier Theard
- Law Firm: Sheppard, Mullin, Richter & Hampton LLP - Los Angeles Office
Two new rules promulgated by the South Coast Air Quality Management District (AQMD) that were designed to encourage development of newer, cleaner electric power plants by replacing older, more-polluting ones were recently vacated in a case pending in the Superior Court in Los Angeles. The court decided that, in implementing the rules, the AQMD, which has broad jurisdiction to control air pollution in most of Southern California, violated the California Environmental Quality Act (CEQA) by failing to analyze the rules’ health and environmental impacts prior to their adoption.
The AQMD adopted two new rules, rules 1315 and 1309.1, which expanded the availability of pollution credits in order to encourage power plant development. The court found that adoption of the rules was within the AQMD’s jurisdiction. However, the court determined that, because the rules would have a significant effect on air quality, they were subject to CEQA and the AQMD failed in its CEQA environmental/health impact analysis.
The court’s opinion reflected a surprising degree of incredulity at the AQMD’s arguments, which the court clearly believed were meritless. In general, the court indicated that the AQMD was abdicating its responsibility to control emissions and conduct a CEQA analysis of the rules’ environmental, health, aesthetic and global warming consequences.
First, the court found that the AQMD erred in its determination that the new rules would not have a significant effect on the environment. The rules would have opened up the market for emission credits to private and public utilities, and thereby “[had] the foreseeable and inevitable consequence of significantly increasing air pollution in the South Coast Air Quality Management District.” The AQMD’s claim that any such emissions would be offset by other mechanisms were unsupported by any CEQA analysis.
Second, the court found that the AQMD abused its discretion by failing to adequately assess the health impact of the rules. The court found that the limited available evidence demonstrated that the health effects could be “monumental,” contributing to 115 premature deaths per new power facility. The AQMD also failed to analyze the cumulative health impacts of the additional emissions, and its claim that lives would be saved by avoiding “rolling blackouts” was not supported by the evidence in the record.
Third, the AQMD did not adequately assess the aesthetic impacts of “the further browning of the sky” that would likely result from additional power plants. The court admonished the AQMD for not assessing how the new rules would affect “the loss of scenic vistas of mountains and sea that results from increasing the existing layer of haze and smog that rests over the Basin.”
Fourth, the AQMD failed to adequately assess the global warming impact of the new rules, which have “a certain and foreseeable effect on global warming.” The court ruled that because new power plants would emit greenhouse gases, the AQMD should have considered the cumulative effect of such emissions.
Finally, because the AQMD failed in its underlying CEQA analysis, it also failed to consider reasonable alternative measures and mitigation strategies. The AQMD decided not to adopt a mitigation monitoring plan, and failed to analyze how mitigation fees could be used to create pollution offsets.
California faces a looming energy crisis, and there is a need for additional sources of power. In this regard, the AQMD claims that the court’s decision will prevent the building of cleaner, more efficient power plants, and is likely to cause “blackouts and brownouts” in the future. While the AQMD’s rulemaking may have been intended to allow more power generation, it is clear that future attempts at developing new energy sources will require consideration of environmental impacts, especially in light of the State’s aggressive efforts to cut greenhouse gas emissions. Finding the balance between energy development and pollution control will be a continuing political and policy debate.