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For a list of our successfully settled cases, please check out our Completed Cases page. NATIONAL CASES
OCE and a group of non-profit organizations, environmental groups and health advocates filed a petition with the federal Circuit Court of Appeals for the District of Columbia on March 18, 2004, to review a final rule issued by the U.S. Environmental Protection Agency (EPA). The rule OCE and others are challenging would remove many of the monitoring requirements specified by Title V. At this point, OCE and its co-petitioners, along with industry trade groups, which were permitted by the court to participate in the case, have submitted legal briefs to the court stating their arguments. The parties have also asked to present their arguments in person to the court. The date for oral arguments has not been set.
OCE, along with Ecological Rights Foundation, filed a complaint in the Northern District of California against the EPA on May 28, 2004 for failure to meet the agency’s mandatory duties under the CWA. Judge Hamilton issued a ruling on Friday, May 19, 2005 dismissing OCE’s case, saying EPA had satisfied its mandatory duties by establishing a schedule for the annual review, identifying new categories, and by proposing a schedule for promulgating rules for newly-identified categories. OCE asserts that the EPA has not fulfilled its duty and will appeal Hamilton’s decision to the Ninth Circuit Court by the end of June.
OCE filed suit on January 6, 2005 against the EPA for failing to update New Source Performance Standards (NSPS) for emissions from petroleum refineries as required under the Clean Air Act. The revision of these standards as sought by OCE, will remove exemptions for emissions during startup, shutdown, and malfunctions, and also ensure that emissions of all regulated pollutants are continuously monitored and reported. This case is currently under review in the U.S. Northern District Court of California. Industry groups have unsuccessfully attempted to intervene on the side of the defense. The parties are trying to resolve this matter without litigation and have a Pretrial Status Conference scheduled for the end of June.
Our Children’s Earth, Environmental Defense and Transportation Solutions Defense, and Education Fund filed an amicus brief on September 20, 2004 with the federal Ninth Circuit Court of Appeals. Also known as a “friend of the court” brief, an amicus brief is a statement that supports one of the parties to the litigation and provides more specific information to the court. The brief was filed to support Sierra Club’s case against the DOT. Sierra Club’s goal is to require the DOT to study the health effects of toxic air pollutants and particulate matter from highway projects. The DOT has refused to study the issue, claiming that the tools are not available to analyze the impacts in a way that would be useful to decision-makers. The parties are waiting for the Court’s decision in the case.
Our Children’s Earth joined suits against two coal-fired TVA power plants in Tennessee (Bull Run) and Alabama (Colbert) for violations of the federal Clean Air Act on October 15, 2004. Only the Colbert case is active at this time. A victory in the Colbert case would lead to the installation of hundreds of millions of dollars in controls at the Alabama power plant (and potentially other TVA plants), as well as an estimated reduction of 50,000 tons per year in acid-rain-causing sulfur dioxide emissions. Under the Clean Air Act, a “major” source is defined as one which emits 100 tons of sulfur dioxide per year. Thus, victory here would be the rough equivalent of shutting down 500 major sources. In addition, a victory may establish the legal precedence for cleaning up many of TVA’s other coal-fired plants. We are currently in pre-trial proceedings. We anticipate the trial to begin in late 2005 or early 2006. STATE CASES
In December, 2004, OCE, Montana Environmental Information Center, and Environmental Defense filed a formal appeal with the Montana Department of Environmental Quality, opposing an air pollution permit granted to Roundup Power Project. The appeal took issue with a proposed two-unit, 780 megawatt pulverized coal power plant in Helena, Montana, alleging that the air pollution permit violates the Clean Air Act of Montana by allowing too much mercury emissions. In a related matter, OCE opposes a similar permit granted to Roundup Power Project regarding emissions that affect visibility in National Parks and Wilderness Areas in violation of the Clean Air Act’s Prevention of Significant Deterioration program.
OCE joined Sierra Club’s Hawaii Chapter and Hawaii’s Thousand Friends in an action against the City and County of Honolulu and the Director of its Department of Environmental Services on July 29, 2004 in the U.S. District Court for the District of Hawaii to stop these releases of untreated sewer into the Pacific Ocean. We anticipate a decision by the end of June.
Our Children’s Earth filed comments with the Santa Barbara Air Pollution Control District and the Santa Barbara County Association of Governments on September 24, 2004 to raise these issues in the 2004 Santa Barbara County Clean Air Plan (SB CAP). A letter from the California Air Resources Board indicates that VMT growth is four times the rate of population growth, and despite admission of this statistic, the SB CAP has no new transportation control measures to address this problem. OCE is planning to file an enforcement action to remedy the deficiencies in the SB CAP.
OCE and others believe that there are significant unmet transit needs represented by the County’s more than 7,000 strawberry-farm workers that operate from March to August each year. Therefore, budget funds should not be diverted away from valid transit needs to public works projects. Our Children’s Earth joined petitioners David Pierce and Jesus Estrada, coordinator of the Frente Indigena Oaxaqueño Binacional, by filing a petition with the Superior Court of California on May 17, 2004. On June 16, 2005, the SBCAG made a decision to dedicate state transportation funds to a farm worker public transportation program that will be implemented by March 2006. LOCAL BAY AREA CASES
OCE has taken action to stop or at least reduce pollution discharges from Standard’s facility and deter similar facilities from contaminating storm water, which would significantly improve water quality in San Francisco Bay.
OCE contends that the EB MUD systems do not adequately treat water, as required by the Clean Water Act, and therefore, we filed a petition with the State Water Resources Control Board in June 2004. OCE requested that the board review the failure of the California Regional Water Quality Control Board of San Francisco Bay Region (SF Bay Region RWQCB) to take long overdue final action on a Clean Water Act National Pollutant Discharge Elimination System (NPDES) permit to EB MUD’s wet weather overflow structures. We are hoping that a resolution of this case will be final by late June to mid July without seeking judicial review, but if an agreement is not reached, OCE will seek an order mandating that the SF Bay Region RWQCB take overdue action and issue EB MUD a more stringent permit.
On April 22, 2004, the U.S. EPA determined that the Bay Area had actually come into compliance with the federal one hour ozone standard. Represented by the Environmental Law & Justice Clinic at Golden Gate University, OCE filed a petition on June 16, 2004 in the federal Ninth Circuit Court of Appeals for review of EPA’s action. We believe that the determination of compliance is deficient. This important, precedent-setting case was argued before a panel of three judges on June 13, 2005 by Helen Kang of the Environmental Law & Justice Clinic.
Our Children’s Earth filed administrative petitions with the Administrator of the U.S. Environmental Protection Agency in October and November of 2003 to object to these proposed permits. On December 19, 2003 U.S. EPA dismissed our petitions on procedural grounds. OCE appealed U.S. EPA’s decision to the federal Ninth Circuit Court of Appeals on February 12, 2004, but agreed to put the litigation on hold while the Bay Area Air Quality Management District finalized new versions of the Title V permits for the refineries. New administrative petitions were filed with the U.S. EPA on December 4, 2004 regarding the Title V permits for the Valero Refining Company and the Tesoro Refining & Marketing Company. The U.S. EPA responded to these new petitions on March 15, 2005. Although the EPA agreed with several of OCE’s requests for improved permits, the U.S. EPA also refused to address a number of key issues. OCE, represented by the Environmental Law & Justice Clinic at Golden Gate University, filed a new appeal regarding the remaining issues with the federal Ninth Circuit Court of Appeals on May 25, 2005.
OCE’s believes that new power generation at Potrero should only be allowed if the nearby Hunters Point Power Plant is shut down and the new Potrero unit includes the installment of the best pollution control technology. In December 2000, Our Children’s Earth asked the California Energy Commission to allow its participation in the sitting process, along with a coalition of environmental and community groups, opposing the expansion of the power plant. The administrative proceedings before the California Energy Commission were suspended at Mirant’s request as of November 2003. The expansion plan will be dropped in November 2005 unless Mirant requests further deliberation. Back to Enforcement |
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Questions? - Phone: 415.342.0042 - Email: jburcham@ocefoundation.org - © Copyright 2007 OCE |
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Our Children's Earth is continuously pursuing its goal of enforcing the Clean Air Act and other laws designed to protect the public from dangerous, debilitating pollutants. Through strategic litigation against polluters and ineffective government enforcement entities, we hope to create a roadmap of citizen enforcement. Our current docket reflects cases that affect the local Bay Area, various states, and the nation as a whole.
National Title V