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BORDER POWER PLANT WORKING GROUP v. DEPARTMENT OF ENERGY

May 2, 2003

BORDER POWER PLANT WORKING GROUP, PLAINTIFF, VS. DEPARTMENT OF ENERGY; SPENCER ABRAHAM, IN HIS OFFICIAL CAPACITY; CARL MICHAEL SMITH, IN HIS OFFICIAL CAPACITY; ANTHONY J. COMO, IN HIS OFFICIAL CAPACITY; BUREAU OF LAND MANAGEMENT, DEFENDANTS.


The opinion of the court was delivered by: Irma E. Gonzalez, United States District Judge

ORDER (1) GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; (2) GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; (3) DENYING DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S DECLARATIONS; (4) DENYING DEFENDANTS' ORAL MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD; (5) GRANTING PLAINTIFF'S MOTION TO STRIKE SUPPLEMENTAL DECLARATION AND REQUEST FOR JUDICIAL NOTICE; and (6) SETTING BRIEFING SCHEDULE FOR THE REMEDY PHASE OF THE MOTIONS FOR SUMMARY JUDGMENT
Presently before the Court are cross-motions for summary judgement, federal defendants' motion to strike plaintiffs declarations, defendants' oral motion to supplement the record, and plaintiff Border Power Plant Working Group's motion to strike amicus Termoelectrica U.S.'s request for judicial notice and supplemental declaration. For the reasons discussed below, the Court denies in part and grants in part both motions for summary judgment, denies federal defendants' motions to strike and to supplement the record, and grants plaintiffs motion to strike.

BACKGROUND

I. Factual Background*fn1

This case involves two applications for Presidential Permits and federal fights-of-way to build electricity transmission lines within the United States and across the United States-Mexico border to connect new power plants in Mexico with the power grid in Southern California.

1. The BCP Permit and Right-of-Way

In February 2001, Baja California Power ("BCP"), a wholly-owned subsidiary of Intergen Aztec Energy ("Intergen"), applied to defendant U.S. Department of Energy ("DOE") for a Presidential Permit to construct and operate an electric power transmission line across the international border between the United States and Mexico near El Centro, California. (See Pla's Statement of Undisputed Facts ("PSUF") at ¶ 1; Defs' Statement of Undipsuted Facts ("DSUF") at ¶ 2).*fn2 In particular, the BCP transmission line will connect the Imperial Valley electric substation in Imperial County, California to a new power plant called the La Rosita Power Complex ("LRPC") under construction just west of Mexicali, Mexico. See DOE-33, 202165-202167, DOE-101, 204344.*fn3 The connection will be made via another transmission line being constructed in Mexico by Energia de Baja California ("EBC"), a wholly-owned subsidiary of Intergen. See DOE-101 at 204320; DOE-33 at 202167; PSUF at ¶ 2. The LRPC is being built by EBC and another wholly-owned subsidiary of Intergen, Energia Azteca X ("FAX"). DOE-33 at 202167; PSUF at ¶ 2. The LRPC will house four gas-fired combustion turbines. DOE-101 at 204320. EBC will own one of these turbines and EAX will own the remaining three. Id. Two of the EAX turbines, with a combined output of approximately 500 megawatts ("MW"), will provide power to Mexico, while the third EAX turbine and the single EBC turbine will export a combined, nominal*fn4 560 MW of power to the United States. DOE-101 at 204320, 204402, 204404. However, the BCP transmission line will be able to transport power generated by any of the turbines at the LRPC. DOE-101 at 204320 n. 2 (noting that while exported power may in limited circumstances from one of the two turbines designated for Mexican energy production, the total amount of power exported would not rise above a nominal 560 MW). Each of the double circuit lines proposed by BCP would have a capacity of 600 MW. DOE-033 at 202168. The lines are to be constructed in two phases, with the second circuit only strung when business or economic circumstances make possible the expansion of the EBC facility, or to meet the additional transmission needs of the FAX turbines. Id. at 202167-212168.

The EBC turbine and the FAX export turbine utilize dry low-NOx (oxides of nitrogen) combustor technology and selective catalytic reduction ("SCR") technology that reduce NOx emissions to 4 parts per million ("ppm"). DOE-101 at 204402, 204404. Carbon Monoxide (CO) emissions from the EBC turbine and the FAX export turbine would be not be controlled and would emit at 30 ppm. DOE-101, 204404, 204321, 204344. Annual emissions from the EBC turbine and the FAX export turbine would be 282 tons of NO2 (nitrogen dioxide), 924 tons of CO, and 410 tons of PM-10 (particulate matter less than 10 microns in size). DOE-101 at 204401.

The administrative record does not suggest that the remaining two EAX turbines at the LRPG will be built with emissions control technology for NOx or CO. DOE-101 at 204321, 204344.*fn5 Accordingly, these turbines will emit at 25 ppm for Nox and 30 ppm for CO. DOE-101, 204321. Annual emissions from these two FAX turbines would be 1,502 tons of NO2, 957 tons of CO, and 314 tons of PM-10. DOE-101 at 204401.

2. The Termoelectrica-US ("T-US") Permit and Right-of-Way

On March 1, 2001, Sempra Energy Resources (SER) filed an application for a Presidential permit to construct and operate a separate transmission line that would facilitate the transmission of electricity across the U.S.-Mexico border. See DOE-35 at 202186-202187. In particular, the SER application sought permission to build a line that would connect the Imperial Valley electric substation to the Termoelectrica de Mexicali ("TDM") power plant under construction near Mexicali, Mexico. DOE-35 at 202186-202187. The connection will be made via another transmission line being constructed in Mexico by TDM. DOE-35 at 202187. TDM is a wholly-owned subsidiary of Sempra Energy. DOE-35 at 202188. The TDM plant would export 100 percent of its net generating capacity to the United States. DOE-101 at 204344. The TDM facility consists of two gas-fired combustion turbines. DOE-101 at 204320. Although the TDM facility is only permitted by Mexican authorities to generate a nominal 500 MW, DOE-35 at 202188,*fn6 SER indicated that it intended the possible second circuit of the transmission line to have the potential to export up to another nominal 500 MW. DOE-36 at 202196; DOE-35 at 202188.

The TDM facility would be equipped with emission control technology, including dry low-NOx combustor technology, SCR, and oxidizing catalyst systems, to reduce Nox and CO emissions. DOE-101 at 204402. The TDM facility would thus emit 2.5 ppm for NOx and 4.0 ppm for CO. DOE-101 at 204402, 204321. Based on 600 MW of energy output, the TDM facility would annually emit 170 tons of NOx, 165 tons of CO, and 216 tons of PM-10. DOE-101 at 204401.

Concentrations of pollutants at the U.S. Mexico border due to emissions from the TDM facility are predicted to increase as follows: NOx (annual) 0.09 µg/m3 CO (8-hour) 2.16 µg/m3 PM-10 (hourly) 1.12 µg/m3 PM-10 (annual) 0.11 µg/m3. DOE-101 at 204403. When combined with total emissions predicted from the entire LRPC, the concentrations of pollutants at the U.S./Mexico border are expected to rise as follows: N02 (annual) 0.8 µg/m3 CO (1-hour) 70.0 µg/m3 CO (8-hour) 30.8 µg/m3 PM-10 (24-hour) 4.5 µg/m3 PM-10 (annual) 0.3 µg/m3 DOE-101 at 204439.

II. Procedural Background

After undertaking an environmental assessment of the applications for the Presidential Permits and the BLM rights-of-way, DOE and BLM each issued a Finding of No Significant Impact ("FONSI") in December 2001. DOE-103; BLM-182 (FONSI for BCP right-of-way); BLM-183 (FONSI for SER right-of-way). DOE issued Presidential Permits to BCP and SER on December 5, 2001. DOE-104 at 204612; DOE-105 at 204618. BLM granted a right-of-way to BCP that became effective on December 28, 2001, and another right-of-way to SER that became effective on December 31, 2001. BLM-189 at 102333; BLM-186 at 102290. The Presidential Permit and the right-of-way issued to SER were subsequently transferred to T-US, a subsidiary of Sempra Energy. DOE-125S at S24897; BLM-207S at S102612.

Plaintiff filed a motion for summary judgment, alleging various violations of the National Environmental Protection Act ("NEPA") and the Administrative Procedure Act ("APA") on January 31, 2003. The federal defendants filed a cross-motion for summary judgment and an opposition to plaintiffs motion on March 13, 2003. Amicus curiae briefs were filed by BCP, T-US, and Imperial County and City of El Centro. Plaintiff responded to the BCP and T-US briefs on April 4, 2003, and both plaintiff and the federal defendants replied to the other's opposition brief. The federal defendants have also moved separately to strike extra-record materials. Finally, plaintiffs moved to strike T-US's request for judicial notice and supplemental declaration.

DISCUSSION

III. Preliminary Issues

Before reaching the merits of the case, the Court must first determine whether it has jurisdiction and what evidence it can consider. First, the Court will briefly consider whether it has proper jurisdiction.

A. Standing

Although defendants do not challenge plaintiffs standing, the Court has an independent duty to assure itself that it has jurisdiction over the case. Plaintiff has submitted several declarations to demonstrate its standing.

1. Legal Standards

a. Traditional Standing

Because standing is "an essential and unchanging part of the case-or-controversy requirement of Article III," the Court does not have jurisdiction in its absence. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The "irreducible constitutional minimum" of standing contains three elements. Id. First, the plaintiff must have suffered an "injury in fact." Id. The Supreme Court's opinions have defined such an injury as "an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical." Id. (internal quotations omitted). Second, the injury must be fairly traceable to the challenged action of the defendants. See id. Third, it must be "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." IA. at 561 (internal quotations omitted). Each of these elements must be supported by the plaintiff with the same maimer and degree of evidence required to show any other matter at the present stage of the litigation. Id.

With regard to the "imminence" of the injury in fact, the plaintiff must show that the injury is "certainly impending." Id. at 564, n. 2 (emphasis in original). The goal is to avoid conferring standing on a party on which no injury would have occurred at all in the absence of judicial action. Id. In the end analysis, the Court warns that standing "is not `an ingenious academic exercise in the conceivable.'" Id. at 566 (citing United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 688 (1973)).

The requirement that the injury is particularized means that "[t]he plaintiff must have a personal stake in the outcome." Id. at 583. To be concrete, the injury must be more than "abstract." Id. Rather, plaintiff must demonstrate that it has "sustained or is immediately in danger of sustaining some direct injury as the result of the challenged statute or official conduct." Id. (internal quotation omitted).

b. Procedural Standing

In Lujan v. Defenders of Wildlife, the Court recognized that its analysis would differ if it was faced with a case in which "plaintiffs are seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs (e.g., . . . the procedural requirement for an environmental impact statement before a federal facility is constructed next door to them)." Id. at 572. Although the Court rejected the argument that the injury-in-fact requirement is satisfied by "congressional conferral upon all persons of an abstract, self-contained, noninstrumental `right' to have the Executive observe the procedures required by law "id. (emphasis in original), it also recognized that `procedural rights' are special and should be accorded different treatment under the standing analysis:

The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy. Thus, under our case law, one living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency's failure to prepare an environmental impact statement, even though he cannot establish with any certainty that the statement will cause the license to be withheld or altered, and even though the dam will not be completed for many years.
Id. at 572, n. 7. The Lujan Court explained that the case before it differed from its hypothetical case because the Lujan plaintiffs sought procedural standing for persons who had no concrete interests affected. Id. In terms of the Court's hypothetical, these would be people who live on the other side of the country from where the proposed dam would be built. Id. In sum, the Court held that an individual can enforce procedural rights "so long as the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing." Id. at 573.

The Ninth Circuit has determined that the Lujan case requires a plaintiff to show two essential elements for procedural standing: "(1) that he or she is a person who has been accorded a procedural right to protect [his or her] concrete interests . . . and (2) that the plaintiff has some threatened concrete interest . . . that is the ultimate basis of [his or her] standing." Douglas County v. Babbitt, 48 F.3d 1495, 1500 (9th Cir. 1995) (internal citations omitted). Additionally, "plaintiffs must show that their interest falls within the `zone of interests' that the challenged statute is designed to protect." Id. at 1500-01.

The Ninth Circuit has found in several cases that a procedural injury can form the basis for standing. See, e.g. Pacific Northwest Generating Coop. v. Brown, 25 F.3d 1443, 1450 (9th Cir. 1994) (plaintiffs with an economic interest in preserving salmon have procedural interest in ensuring that the ESA is followed); Friends of the Earth v. United States Navy, 841 F.2d 927, 931-32 (9th Cir. 1988) (residents who live near site of proposed port have procedural standing to sue for Navy's alleged failure to follow permitting regulations); State of California v. Block, 690 F.2d 753, 776 (9th Cir. 1982) (state of California has procedural standing to challenge the adequacy of an EIS for forest service's land allocation); City of Davis v. Coleman, 521 F.2d 661, 671 (9th Cir. 1975) (city located near proposed freeway interchange has procedural standing to challenge agency's failure to prepare an EIS).

c. Organizational Standing

An association has standing to bring suit on behalf of its members when "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977).

2. Application to This Case

Plaintiff claims that five of the eight declarations it submitted in conjunction with its motion for summary judgment support plaintiffs standing. (See Declarations of Marie Barrett, Carlos Yruretagoyena Ugalde, Femando Armando Medina-Robles, Kimberly Collins, and William Powers). All five are members of the plaintiff organization. Four of the five live either in Imperial Gounty, U.S.A., or Mexicali, Mexico, near the transmission lines and power plants at issue. Based on their proximity to the project and the procedural requirement under NEPA to evaluate whether the project will have a significant impact on the environment, it seems clear that at least four of the members submitting declarations have procedural standing to sue in their own right. Furthermore the interest that the plaintiff seeks to protect — the public health and quality of the environment in that region — are germane to the plaintiffs purpose. (See Powers Decl. at 2 ("[Plaintiff organization's] membership is composed of United States and Mexican citizens who share a concern for the environmental health of the border region."). Finally, because the standing to sue is common to at least four of the members who submitted declaration, it is clear that no one member's participation is required in the lawsuit other than to supply the declaration that confers standing. Accordingly, it appears that plaintiff has satisfactorily demonstrated by a preponderance of the evidence that it has organizational standing to proceed in this suit.

B. Extra-Record Materials

As a second preliminary matter, the Gourt must determine what facts may properly form the basis of its decision. Plaintiffs cause of action arises under the Administrative Procedure Act ("APA"), 5 U.S.G. § 701 et seq. In general, actions under the APA are based on judicial review of the administrative record on which the agency relied in reaching the decision at issue. See 5 U.S.G. § 706. Defendants complain that plaintiff has filed eight extra-record declarations, each of which post-dates the final decision made by defendants in this case. (See generally Defs' Mem. in support of Motion to Strike). Accordingly, defendants move to strike these declarations. At the same time, Defendant-Intervenors T-US and BCP have submitted extra-record declarations in support of their respective amicus briefs. Finally, amici County of Imperial and City of El Centreo have lodged several documents that they believe require judicial notice.*fn7

The APA directs that "the court shall review the whole record or those parts of it cited by a party." 5 U.S.G. § 706. The Ninth Circuit has interpreted this command in the following way:

Generally, judicial review of agency action is limited to review of the administrative record. Friends of the Earth v. Hintz, 800 F.2d 822, 828 (9th Cir. 1986). In Florida Power & Light Co. v. Lorion, 470 U.S. 729, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985), the Supreme Court emphasized that when reviewing administrative decisions:
"[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." The task of the reviewing court is to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on the record the agency presents to the reviewing court. Id. at 743-44, 105 S.Ct. at 1607 (quoting Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973)). This standard is applicable to review of agency action under NEPA. Hintz, 800 F.2d at 829.
However, certain circumstances may justify expanding review beyond the record or permitting discovery. See, e.g., Public Power Council v. Johnson, 674 F.2d 791, 793 (9th Cir. 1982). The district court may inquire outside the administrative record when necessary to explain the agency's action. Id. at 793-94. When such a failure to explain agency action effectively frustrates judicial review, the court may "obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary." Camp v. Pitts, 411 U.S. 138, 143, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). The court's inquiry outside the record is limited to determining whether the agency has considered all relevant factors or has explained its course of conduct or grounds of decision. Hintz, 800 F.2d at 829.
The district court may also inquire outside of the administrative record "when it appears the agency has relied on documents or materials not included in the record." Public Power Council [v. Johnson], 674 F.2d [791] at 794 [9th Cir. 1982]. In addition, discovery may be permitted if supplementation of the record is necessary to explain technical terms or complex subject matter involved in the agency action. Id.
Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir. 1988) as amended by Animal Defense Council v. Hodel, 867 F.2d 1244 (9th Cir. 1989); see also Hells Canyon Preservation Council v. Jacoby, 9 F. Supp.2d 1216, 1223 (D. Ore. 1998).

Plaintiff argues that its three scientific declarations fall within these exceptions. (See Pla's Opp'n to Defs' Mot. to Strike at 3)*fn8 First, plaintiff argues that the declarations demonstrate relevant factors (including impacts on air, water, and human health) that DOE did not adequately consider. (Id.). Second, they argue that the declarations help to explain technical terms essential to the case. (Id. at 4). Because it is not the Court's job to "resolve disagreements among various scientists as to methodology," the Court will not consider the declarations to the extent they seek to simply advocate a better or different methodology for assessing environmental impacts already analyzed in a reasonable manner by defendants. See Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir. 1985). Neither may post-decisional documents be used to object to or support the federal actions for the first time. See Havasupai Tribe v. Robertson, 943 F.2d 32, 34 (9th Cir. 1991); Association of Pacific Fisheries v. EPA, 615 F.2d 794, 811-812 (9th Cir. 1980). However, to the limited extent that these declarations provide information falling within one of the established exceptions to the general rule that the review will be confined to the record, the Court will consider them. See Sierra Club v. Babbitt, 69 F. Supp.2d 1202, 1209 (E.D. Cal. 1999) (finding extra-record declarations permissible and helpful in understanding the factual complexities of the case). If the Court relies on any of ...


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