No. 11-71127 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 

CALIFORNIA COMMUNITIES AGAINST TOXICS, an unincorporated 

association; COMMUNITIES FOR A BETTER ENVIRONMENT 

Petitioners, 

v. 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, LISA P. 

JACKSON, Administrator, U.S. Environmental Protection Agency, and JARED 

BLUMENFELD, Regional Administrator, Region IX, U.S. Environmental 

Protection Agency, 

Respondents. 

_______________ 

ON PETITION FOR REVIEW OF AN ORDER OF THE 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

BRIEF OF INTERVENOR CPV SENTINEL, LLC IN SUPPORT OF 

RESPONDENTS AND UNOPPOSED MOTION FOR EXPEDITED ORAL 

ARGUMENT 

 Michael J. Carroll 

Joshua T. Bledsoe 

LATHAM & WATKINS LLP 

650 Town Center Dr., Suite 2000 

Costa Mesa, CA 92626 

Telephone: (714) 540-1235 

Facsimile: (714) 755-8290 

Counsel for CPV Sentinel, LLC

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CORPORATE DISCLOSURE STATEMENT 

Pursuant to Federal Rule of Appellate Procedure 26.1, Intervenor CPV 

Sentinel, LLC submits this disclosure statement. CPV Sentinel, LLC is an indirect 

subsidiary of Competitive Power Ventures Holdings, LLC, General Electric 

Company, and Mitsubishi Corporation. 

Dated: January 27, 2012 

 

 /s/ Joshua T. Bledsoe 

Michael J. Carroll 

Joshua T. Bledsoe 

LATHAM & WATKINS LLP 

650 Town Center Dr., Suite 2000 

Costa Mesa, CA 92626 

Telephone: (714) 540-1235 

Facsimile: (714) 755-8290 

Counsel for CPV Sentinel, LLC

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TABLE OF CONTENTS 

Table of Authorities ..................................................................................................iv

Glossary.....................................................................................................................vi

Introduction................................................................................................................1

Statement of Jurisdiction............................................................................................2

Statement of the Issues...............................................................................................2

Statement of the Case.................................................................................................2

Summary of the Argument.........................................................................................2

Argument....................................................................................................................5

I. Unique Aspects Of The CPV Sentinel Energy Project Demonstrate a 

Project In Stark Contrast To That Depicted By Petitioners.......................................5

A. The CPV Sentinel Energy Project Will Fulfill Multiple Needs 

In Southern California...........................................................................6

B. The CPV Sentinel Energy Project Is Located In The Salton Sea 

Air Basin, Which California Believes Already Has Attained the 

PM10 NAAQS........................................................................................9

C. The Potential Worst Case Emissions From The CPV Sentinel 

Energy Project Are Below The Federal Offset Threshold..................10

D. The CPV Sentinel Energy Project’s AB 1318 Emission Credits 

Are Doubly Effective Due To The Underlying Source 

Shutdowns And The Fees To Further Reduce Emissions...................11

E. The Sentinel Energy Project Underwent Extensive 

Environmental Review By The CEC And Was Found To Have 

No Adverse Environmental Impacts ...................................................12

F. The Sentinel Energy Project Purposely Was Sited To Avoid 

Impacts To Population Centers, Including Environmental 

Justice Areas........................................................................................14

II. Sentinel Agrees With Respondent EPA’s Responses To Allegations 

Regarding Procedural Requirements, Surplus And Quantifiable 

Requirements, And The Relevancy Of SCAQMD’S Rule 1315.............................16

III. The AB 1318 Emission Credits Are Included In The AQMP 

Emissions Inventory And, Therefore, Are Creditable As Offsets...........................17

A. Rationale For, And Operation Of, The Base Year Requirement ........18

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B. Pre-2003 AB 1318 Emission Credits Explicitly Are Included In 

The 2007 AQMP Inventory.................................................................21

1. The Rule 1309.2 Offset Budget Accounts For Pre-2003 

Emission Credits .......................................................................23

2. The 2007 AQMP’s Growth Projections Already Account 

For Pre-2003 Emission Credits.................................................25

Conclusion ...............................................................................................................28

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TABLE OF AUTHORITIES 

CASES

Alaska v. Dept. of Envtl. Conservation v. EPA, 

540 U.S. 461 (2004)................................................................................... 28 

Chae-Sik Lee v. Kennedy, 

294 F. 2d 231 (D.C. Cir. 1961) .................................................................. 22 

Friends of Earth v. Hintz, 

800 F.2d 822 (9th Cir. 1986)...................................................................... 22 

McDonnell Douglas Corp. v. U.S. Dep’t of the Air Force, 

375 F.3d 1182 (D.C. Cir. 2004) ................................................................. 22 

FEDERAL STATUTES 

5 U.S.C. § 706............................................................................................... 28 

42 U.S.C. § 7407(d) ...................................................................................... 9 

42 U.S.C. § 7503(c) ...................................................................................... 9, 10 

42 U.S.C. §§ 7401-7671q ............................................................................. 1 

FEDERAL REGULATIONS 

40 C.F.R. pt 50.............................................................................................. 9 

40 C.F.R. § 51.165(a)(1)(iv)(A)(1)(vi) ......................................................... 10 

40 C.F.R. § 51.165(a)(3)(ii)(C)(1)(ii) ........................................................... 18 

40 C.F.R. pt. 51, App. S................................................................................ 18, 20 

40 C.F.R. pt. 52, Subpart F ........................................................................... 26 

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FEDERAL REGISTER NOTICES 

72 Fed. Reg. 31727 (June 8, 2007)............................................................... 19, 20 

76 Fed. Reg. 22038 (Apr. 20, 2011) ............................................................. 1 

STATE STATUTES AND REGULATIONS 

Cal. Code Regs. tit. 14, § 15002(a)............................................................... 13 

Cal. Gov’t Code § 65040.12(e)..................................................................... 15 

Cal. Pub. Res. Code § 21080 ........................................................................ 13 

SCAQMD Rule 1309.2................................................................................. 4, 23, 24 

SCAQMD’s Rule 1315 ................................................................................. 4, 16, 17 

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GLOSSARY

AB 1318 California Assembly Bill No. 1318 

AQMP Air Quality Management Plan 

CAA Clean Air Act 

CBE Petitioner Communities for a Better Environment 

CCAT Petitioner California Communities Against Toxics 

CEC California Energy Commission 

CEQA California Environmental Quality Act 

CPUC California Public Utilities Commission 

EAP Energy Action Plan 

EPA Respondent U.S. Environmental Protection Agency 

ERC Emission Reduction Credit 

GHG Greenhouse Gases 

MW Megawatts 

NAAQS National Ambient Air Quality Standards 

NSR New Source Review 

OTC Once-Through Cooling 

PM10 Particulate matter with diameter of less than 10 microns 

PM2.5 Particulate matter with diameter of less than 2.5 microns 

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SCAQMD Intervenor South Coast Air Quality Management District 

SCE Southern California Edison 

SIP State Implementation Plan 

SOx Sulfur Oxide

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INTRODUCTION

California Communities Against Toxics (“CCAT”) and Communities for a 

Better Environment (“CBE”) (collectively “Petitioners”) challenge Respondent 

United States Environmental Protection Agency’s (“EPA” and together with 

Administrator Lisa P. Jackson and Regional Administrator Jared Blumenfeld, 

collectively “Respondents”) final rule entitled “Revision to the South Coast 

Portion of the California State Implementation Plan, CPV Sentinel Energy Project, 

[California Assembly Bill] AB 1318 Tracking System,” 76 Fed. Reg. 22038 (Apr. 

20, 2011) (hereinafter “Final Rule”), PER -000005-000011. The Final Rule, 

promulgated by EPA under the authority of the Clean Air Act, 42 U.S.C. §§ 7401-

7671q (“CAA”), incorporates enabling language into the South Coast portion of 

the California State Implementation Plan (“SIP”), and by that incorporation, 

approves as meeting federal CAA requirements the transfer of specifically 

identified emission credits for particulate matter smaller than 10 microns in size 

(“PM10”) and sulfur oxides (“SOx”). 

CPV Sentinel, LLC (“Sentinel”) was granted leave to intervene in support of 

Respondents in these proceedings by the Court on June 15, 2011. Sentinel has a 

direct and substantial interest in these proceedings because the Final Rule relates 

specifically and exclusively to the CPV Sentinel Energy Project, a nominally rated 

850-megawatt electrical generating facility located in Riverside County near Palm 

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Springs, California (“CPV Sentinel Energy Project” or “Project”). Sentinel 

requests that this Court uphold the Final Rule, and not remand or vacate the Final 

Rule, as EPA’s rulemaking is supported by the administrative rulemaking record 

that was before EPA at the time of EPA’s final action. 

STATEMENT OF JURISDICTION

Sentinel agrees with Petitioners’ statement of jurisdiction. 

STATEMENT OF THE ISSUES

Sentinel agrees with Respondents’ statement of the issues. 

STATEMENT OF THE CASE

Sentinel agrees with Respondents’ statement of the case. 

SUMMARY OF THE ARGUMENT

Petitioners’ suggestions that the CPV Sentinel Energy Project is unnecessary 

and environmentally detrimental are false. Following extensive review and 

participation by all interested parties (including the Petitioners), all relevant 

California agencies and the state legislature found that the Project is necessary for 

energy reliability and the integration of renewable energy sources in Southern 

California. In addition to making possible the integration of renewable energy 

sources that will improve the overall air quality in Southern California, this state of 

the art Project has been located and designed, and will be operated, to minimize 

environmental and public health impacts. Additionally, the Project will provide 

significant environmental mitigation resources to improve air quality in the vicinity 

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of the Project. Approving agencies have found that the Project will not result in 

any significant environmental or public health impacts. 

The Project is distant from population centers and located in a remote 

portion of the Salton Sea Air Basin, an air basin that California has requested be 

redesignated as in “attainment” of the federal PM10 standards. PM10 and SOx 

emission credits would no longer be required upon EPA’s approval of the 

redesignation request. Furthermore, even without a redesignation, Project 

emissions of PM10 are below the threshold at which federal regulations require the 

offsetting of PM10 emissions. Nevertheless, the Project will fully offset its PM10 

emissions (as well as PM10 precursor emissions of SOx) with emission credits from 

the AB 1318 Tracking System. In addition, pursuant to AB 1318, Sentinel has 

contributed $53,318,358.30 to be used for further improvements to air quality. 

Contrary to Petitioners’ arguments, EPA’s approval of the Final Rule 

satisfied all applicable procedural requirements. In addition, Petitioners had actual 

notice and possession of the documents that are the subject of their procedural 

claims. 

Petitioners have waived their claims regarding the quantifiability and surplus 

nature of certain of the emission credits in the AB 1318 Tracking System by failing 

to raise these claims with sufficient specificity during the rulemaking proceedings. 

Furthermore, these claims are exaggerated and inaccurate in certain respects. 

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Finally, even if these claims were properly before the Court, and even if they were 

entirely valid, only an immaterial quantity of emission credits would be affected. 

 The approval status of South Coast Air Quality Management District’s 

(“SCAQMD”) Rule 1315 has no relevance to this case. The emission credits that 

are at issue, and that were specifically analyzed in the rulemaking, are those in the 

AB 1318 Tracking System. The status of the remaining emission credits in the 

SCAQMD’s New Source Review (“NSR”) account, which is the subject of Rule 

1315, is not at issue here. 

The emission credits that the CPV Sentinel Energy Project will utilize were 

explicitly included in the SCAQMD’s 2007 Air Quality Management Plan 

(“AQMP”), the plan EPA relied upon in its rulemaking process when evaluating 

the “base year requirement.” These emission credits explicitly were included in 

the 2007 AQMP both as part of SCAQMD’s Rule 1309.2 “Offset Budget,” and as 

part of the 2007 AQMP’s growth allowance. Both of these inclusions of the AB 

1318 emission credits independently satisfy the “explicitly included” requirement 

of the base year requirement. 

For the reasons set forth herein, EPA’s rulemaking is supported by the 

record the agency relied on, and is neither arbitrary nor capricious. Therefore, 

EPA’s rulemaking should be upheld without remand or vacatur. 

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ARGUMENT

I. UNIQUE ASPECTS OF THE CPV SENTINEL ENERGY PROJECT 

DEMONSTRATE A PROJECT IN STARK CONTRAST TO THAT 

DEPICTED BY PETITIONERS

Petitioners have attempted to portray the CPV Sentinel Energy Project as an 

unnecessary and unhealthy project for Southern California, when the reality is 

anything but. Petitioners seek to substitute their judgment for that of the California 

legislature, arguing that the state legislature made an “ill-advised policy decision” 

in passing AB 1318. Petitioners’ Opening Brief at 9. Petitioners submitted several 

declarations with their opening brief claiming the Project would cause 

environmental harm. See e.g., Declaration of Robert Cabrales (discussing the 

alleged cumulative environmental impacts on the region). Petitioners also have 

made allegations of environmental harm in other filings in this case. See e.g., 

Petitioners’ Opposition to Motion For Voluntary Remand of the Record at 2-3 

(alleging environmental harm due to construction-related and operations-related air 

emissions). 

Petitioners’ allegations are in stark contrast to the findings of the California 

legislature which adopted AB 1318, and of the multiple agencies that reviewed and 

approved the Project. The CPV Sentinel Energy Project has been thoroughly 

vetted, and contrary to Petitioners’ characterizations, has been found to be 

necessary, beneficial, and environmentally friendly. 

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A. The CPV Sentinel Energy Project Will Fulfill Multiple Needs In 

Southern California

The Petitioners opine that the state legislature made an “ill-advised policy 

decision” in passing AB 1318, which made possible the approval and development 

of the Project. Petitioners’ Opening Brief at 9. However, as both the California 

Public Utilities Commission (“CPUC”) and the California Energy Commission 

(“CEC”) have recognized in their general policy statements and in their specific 

decisions on the Project, Southern California needs new generation projects like 

the CPV Sentinel Energy Project to fulfill current and future electricity generation 

needs, to support development of intermittent renewable energy resources, and to 

support the economy. It should be noted that the Petitioners participated in the 

legislative debate on AB 1318 in both the Assembly and the Senate, see Intervenor 

CPV Sentinel, LLC’s Request To Take Judicial Notice (hereinafter “RJN”) Ex. 11, 

and that AB 1318 passed by supermajority in both chambers, see RJN Ex. 12 and 

Ex. 13. 

Since 2003, the CPUC and CEC have adopted and regularly updated an 

“Energy Action Plan” (“EAP”) to set a “roadmap” for the state’s energy policy and 

establish an electricity “loading order” that ensures more efficient, lower polluting 

sources are brought on line first after renewable generation, displacing electricity 

from older, less efficient power plants and dirtier out-of-state coal-fired plants. 

RJN Ex. 5 at 4. The EAP recognizes modern natural gas facilities as more 

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efficient, lower polluting sources. Id. at 5-6. The most recent EAP update, from 

2008, also emphasizes the need for “peaking generation that runs only a small 

number of hours every year, primarily during the summer months.” RJN Ex. 6 at 

10. The CPV Sentinel Energy Project is specifically designed to meet these needs. 

In 2008, the CPUC initially approved Southern California Edison’s (“SCE”) 

Power Purchase Agreement (“PPA”) with the CPV Sentinel Energy Project 

because, among other reasons, it “is needed to preserve system reliability.” RJN 

Ex. 7 at 15. The CPUC stated that the CPV Sentinel Energy Project will help SCE 

avoid being “caught . . . with insufficient electricity in its portfolio,” a situation 

that “will definitely increase the cost to ratepayers.” Id. at 10. 

The CPUC reinforced these statements in its April 14, 2011 approval of the 

amended PPA and identified additional issues that increase the need for the CPV 

Sentinel Energy Project. Regarding reliability issues, the CPUC stated, “SCE 

continues to need the new generation represented by the amended CPV contract in 

order to meet system reliability needs.” RJN Ex. 8 at 8. In addition, the CPUC 

noted the California State Water Resources Control Board’s May 4, 2010 adoption 

of a policy concerning the phase-out of once-through cooling (“OTC”) generation 

plants. Id. at 9. According to the CPUC, in SCE’s service territory there are 9,070 

megawatts (“MW”) of generation that use OTC technology and will have to come 

into compliance with the new policy. It is unlikely all of these generation facilities 

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will be able to bear the high costs of installing new cooling systems, leading the 

CPUC to conclude: “[t]he CPV facility, which is located in the critical Los 

Angeles Basin local area, does not use OTC and can serve as a replacement for 

some of this OTC generation that may retire.” Id. 

The CEC’s certification of the CPV Sentinel Energy Project further 

demonstrates why the Project meets vital needs in Southern California. The CEC 

found that the Project will facilitate the integration of renewable energy resources 

into the electricity grid. As a peaking plant that can start quickly to address 

demand, the Project can provide the flexible back-up power “necessary to integrate 

some of the growing generation from intermittent wind and solar generation.” RJN 

Ex. 9 at GHG-9. Accordingly, the CEC concluded that the Project “will foster the 

addition of renewable generation into the electricity system, which will further 

reduce system GHG [greenhouse gas] emissions.” Id. at GHG-12. The CEC, like 

the CPUC, found that the Project will both displace generation from less-efficient, 

higher-GHG-emitting power plants in the area and firm up the reliability of the 

regional electricity grid, thereby reducing regional dependence on imported power. 

Id. at GHG-11 and Project Description-10. 

Beyond these significant environmental and electricity reliability benefits, 

the CPV Sentinel Energy Project also will create jobs and tax revenue, boosting the 

local and state economies. Construction of the Project, which currently is well 

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underway, employs a union workforce in excess of 350, including specialists like 

boilermakers, electricians, ironworkers, and carpenters. Id. at Project Description8. Once operational, the Project will require staffing 24 hours per day. Id. 

Sentinel estimates that the Project will generate over $9 million in state and local 

tax revenue annually. See also id. at Socioeconomics-3. 

B. The CPV Sentinel Energy Project Is Located In The Salton Sea Air 

Basin, Which California Believes Already Has Attained the PM10

NAAQS

Pursuant to the CAA, EPA has established National Ambient Air Quality 

Standards (“NAAQS”) for six criteria pollutants: carbon monoxide; lead; nitrogen 

dioxide; ozone; particulate matter; and sulfur dioxide. 40 C.F.R. pt. 50. EPA 

designates air basins as “attainment” or “nonattainment” areas, depending on 

whether a basin meets the NAAQS for a particular pollutant. 42 U.S.C. § 7407(d). 

New sources of pollution in nonattainment areas must offset their emission 

increases. 42 U.S.C. § 7503(c). 

The CPV Sentinel Energy Project is located in the Salton Sea Air Basin, and 

not in the adjacent, more impacted and densely populated South Coast Air Basin. 

PER -000023. As noted in Petitioners’ Opening Brief, the Salton Sea Air Basin 

currently is designated as nonattainment with the NAAQS for PM10. Petitioners’ 

Opening Brief at 3. Thus, the Project is required to offset its emissions of PM10. 

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42 U.S.C. § 7503(c). It also is required to offset its emissions of SOx because SOx

is a precursor to PM10. PER -000005. 

However, the Petitioners fail to note that the State of California has 

submitted a request to EPA to redesignate the pertinent portion of the Salton Sea 

Air Basin from nonattainment to attainment for the PM10 NAAQS. RJN Ex. 3. 

This redesignation request indicates that the SCAQMD and the California Air 

Resources Board believe the Salton Sea Air Basin attained the PM10 NAAQS as 

early as December 31, 2006. See RJN Ex. 4 at 1. If the Salton Sea Air Basin’s 

status were reclassified to attainment by EPA, the CPV Sentinel Energy Project 

would not be required to offset its PM10 or SOx emissions. 42 U.S.C. § 7503(c). 

C. The Potential Worst Case Emissions From The CPV Sentinel Energy 

Project Are Below The Federal Offset Threshold

The CAA requires major stationary sources to obtain emission offsets before 

commencing operation in nonattainment areas. 42 U.S.C. § 7503(c). In 

nonattainment areas such as the Salton Sea Air Basin, EPA’s NSR regulations 

define a “major stationary source” as a source that emits, or has the potential to 

emit, 70 tons per year of PM10. 40 C.F.R. § 51.165(a)(1)(iv)(A)(1)(vi). Sources 

with emissions below this 70 ton annual threshold are not required by the federal 

NSR regulations to offset their emissions of PM10. 

While the CPV Sentinel Energy Project still is required by California law to 

obtain PM10 offsets, the Project’s potential emissions are below the pertinent 

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federal threshold. In its commissioning year, when the highest emissions are 

expected, the Project’s emissions would be approximately 59.06 tons of PM10 per 

year, nearly 11 tons below the federal threshold. The CPV Sentinel Energy 

Project’s compliance with the federal offset threshold exemplifies the Project’s 

clean emissions profile and provides context for Petitioners’ allegations of 

environmental harm. See e.g., Petitioners’ Opposition to Motion For Voluntary 

Remand of the Record at 2-3 (alleging environmental harm due to constructionrelated and operations-related air emissions). 

D. The CPV Sentinel Energy Project’s AB 1318 Emission Credits Are 

Doubly Effective Due To The Underlying Source Shutdowns And 

The Fees To Further Reduce Emissions

The AB 1318 emission credits utilized by the CPV Sentinel Energy Project 

provide a significant additional environmental benefit relative to emission credits 

acquired from private parties on the open market, as is traditionally done. AB 

1318 required the CPV Sentinel Energy Project to pay fees to the SCAQMD before 

the emission credits could be transferred. CPV-ER-000008. AB 1318 also 

established specific requirements on the SCAQMD’s use of these fees: 

“The mitigation fees shall only be used for emission 

reduction purposes. The south coast district shall ensure 

that at least 30 percent of the fees are used for emission 

reductions in areas within close proximity to the 

electrical generating facility and at least 30 percent are 

used for emission reductions in areas designated as 

‘Environmental Justice Areas’. . . .” Id. 

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The CPV Sentinel Energy Project paid $53,318,358.30 in fees to SCAQMD, which 

were placed into the SCAQMD’s “AB 1318 Mitigation Fees Fund.” RJN Ex. 1 at 

28 and 41. 

In a private party transaction on the open market, which is how emission 

credits typically are obtained for a project such as the CPV Sentinel Energy 

Project, funds are paid to a private seller that faces no restrictions on the use of the 

money it receives from the buyer in exchange for the transferred emission credits. 

See RJN Ex. 2 at 1309-4. In the absence of such restrictions, it is unlikely open 

market sellers magnanimously will fund additional emission reductions. 

Accordingly, the CPV Sentinel Energy Project’s use of the AB 1318 emission 

credits to offset its emissions will have a more beneficial environmental effect than 

if it had been able to purchase emission credits on the open market. In sum, the 

CPV Sentinel Energy Project’s emission offsetting strategy represents not only the 

emission reductions that previously occurred to create the AB 1318 emission 

credits, but also over $53 million in additional emission reductions. 

E. The Sentinel Energy Project Underwent Extensive Environmental 

Review By The CEC And Was Found To Have No Adverse 

Environmental Impacts

Contrary to Petitioners’ allegations of environmental harm, see e.g., 

Petitioners’ Opposition to Motion For Voluntary Remand of the Record at 2-3 

(alleging environmental harm due to construction-related and operations-related air 

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emissions), the CEC determined, after extensive review pursuant to the California 

Environmental Quality Act (“CEQA”), that the CPV Sentinel Energy Project will 

not create any significant adverse environmental impacts. CEQA requires 

environmental review of certain discretionary agency actions. See Cal. Pub. Res. 

Code § 21080. The purpose of a CEQA analysis is to: (1) inform decision makers 

and the public about the potential, significant environmental effects of proposed 

activities; (2) identify ways to avoid or significantly reduce environmental damage; 

(3) prevent damage by requiring changes in projects through the use of alternatives 

or mitigation when feasible; and (4) disclose the agency’s reason for approving the 

project if significant environmental effects are involved. Cal. Code Regs. tit. 14, 

§ 15002(a). Notably, Petitioners actively participated in the CEC proceedings. See

Respondents’ Motion To Take Judicial Notice, Ex. 1 at 3 (Petitioners’ petitions to 

intervene in the CEC proceedings referenced at CEC docket logs 55903 and 

54411). 

As required by CEQA, the CEC analyzed a wide range of potential 

environmental impacts, and found all impacts to be either insignificant or mitigated 

to the point of insignificance. The potential environmental impacts evaluated by 

the CEC include: (1) GHG emissions; (2) air quality impacts; (3) public health 

concerns; (4) worker safety concerns; (5) waste and hazardous materials 

management; (6) biological resources impacts; (7) soil and water resources 

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impacts; (8) cultural resources impacts; (9) geological and paleontological 

resources impacts; (10) land use impacts; (11) traffic and transportation impacts; 

(12) socioeconomic impacts; (13) noise and vibration impacts; and (14) visual 

resources impacts. RJN Ex. 9 at 1-3 and i-iii. For each of these categories, the 

CEC made both findings of fact and conclusions of law that support the CEC’s 

ultimate conclusion that the CPV Sentinel Energy Project will not create any 

significant adverse environmental impacts. Id. at i-iii. 

In particular, the CEC concluded that: 

Construction and operation of the project, as mitigated, 

will not create any significant adverse environmental 

impacts. Therefore, the record establishes that no 

feasible alternatives to the project, as described during 

these proceedings, exist which would reduce or eliminate 

any significant environmental impacts of the mitigated 

project. The evidence does not establish the existence of 

any environmentally superior alternative site. Id. at 2. 

The CEC’s comprehensive CEQA analysis demonstrates that the CPV Sentinel 

Energy Project will not create any significant adverse environmental impacts. 

Rather, the Project will have significant beneficial effects, both environmental and 

otherwise, as described herein. 

F. The Sentinel Energy Project Purposely Was Sited To Avoid Impacts 

To Population Centers, Including Environmental Justice Areas

The declarations submitted in support of Petitioners’ Opening Brief allege 

that the CPV Sentinel Energy Project will have environmental justice impacts. See

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e.g., Declaration of Robert Cabrales (describing “toxic tours” that Mr. Cabrales 

leads that discuss “emissions and broader environmental justice implications,” and 

describing the “cumulative impacts of the area’s [Southeast Los Angeles’s] many 

industrial facilities and its freeways and railroads.”). 

While the CPV Sentinel Energy Project will serve urban and suburban 

population centers within the greater Los Angeles region, it is not located within, 

or even near, population centers. Instead, the Project is located in unincorporated 

Riverside County, approximately eight miles northwest of Palm Springs and 4.5 

miles west of Desert Hot Springs. RJN Ex. 9 at Project Description-1. Due in part 

to its remote location, the CEC found that “[t]here is no evidence that the Project 

will adversely impact local schools, utilities, recreational parks, emergency 

services, or law enforcement.” Id. at Socioeconomics-2. 

The CEC found that “[a]ll potential health and safety and environmental 

impacts from the Project will be mitigated to insignificant levels for all affected 

populations including minority populations.” Id. at Socioeconomics-5. The CEC 

also found that “the Project is consistent with environmental justice principles.” 

Id. California has defined “environmental justice” as the “fair treatment of people 

of all races, cultures, and incomes with respect to the development, adoption, 

implementation, and enforcement of environmental laws, regulations, and 

policies.” Cal. Gov’t Code § 65040.12(e). The CEC considered this definition, 

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and found that while there are minority populations within a six-mile radius of the 

CPV Sentinel Energy Project, the “Project will not cause or contribute to 

disproportionate impacts upon minority populations.” RJN Ex. 9 at 

Socioeconomics-6. 

II. SENTINEL AGREES WITH RESPONDENT EPA’S RESPONSES TO 

ALLEGATIONS REGARDING PROCEDURAL REQUIREMENTS, 

SURPLUS AND QUANTIFIABLE REQUIREMENTS, AND THE 

RELEVANCY OF SCAQMD’S RULE 1315.

Sentinel agrees with Respondent EPA’s following responses to allegations 

raised in Petitioner’s Opening Brief. 

First, Sentinel agrees that EPA met its procedural burden under the 

Administrative Procedures Act (“APA”). The identity of documents EPA relied 

upon in this rulemaking was abundantly clear from the proposed rulemaking, and 

EPA’s course of dealing with Petitioners included letters that referenced the 

record. During the CEC proceedings, Petitioners actually received, and submitted 

expert testimony on, the documents they claim that EPA failed to identify and 

make available. For these reasons, and others set forth in EPA’s Answering Brief, 

Petitioners’ claims of procedural error are without merit. See Respondents’ 

Answering Brief at 14-21. 

Next, Sentinel agrees with EPA that Petitioners waived their claims 

regarding the quantifiability and surplus nature of select emission credits in the AB 

1318 Tracking System by failing to comment on these issues with sufficient 

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17

specificity during the rulemaking. Sentinel also agrees that even if these claims 

had not been waived, they lack merit in certain respects. Furthermore, even if the 

claims had not been waived and were presumed to be meritorious, only an 

immaterial quantity of emission credits would be affected. EPA’s finding that a 

sufficient number of emission credits meet the CAA offset requirements, including 

the surplus and quantifiable requirements, would remain valid. See Respondents’ 

Answering Brief at 21-32. 

Finally, Sentinel agrees with EPA that the SIP approval status of 

SCAQMD’s Rule 1315 has no relevance in this case, as this Court already has 

recognized there is no requirement in the CAA or in the SIP that a tracking system 

must be approved for SCAQMD’s internal bank. See Respondents’ Answering 

Brief at 41-48. 

III. THE AB 1318 EMISSION CREDITS ARE INCLUDED IN THE 

AQMP EMISSIONS INVENTORY AND, THEREFORE, ARE 

CREDITABLE AS OFFSETS

Petitioners argue that certain AB 1318 emission credits do not meet 

applicable requirements because they are not included in a SIP planning inventory 

used to track attainment of the NAAQS. Specifically, Petitioners argue that the 

PM10 emission credits pre-dating 2003 have been excluded from this baseline 

inventory and, therefore, do not meet the baseline requirement. Petitioners’ 

Opening Brief at 27. Contrary to Petitioners’ assertions, these AB 1318 emission 

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18

credits meet the baseline requirement because they are explicitly included in the 

pertinent emissions inventory in at least two separate ways. 

To be valid, emission credits must meet certain timing requirements. 

Emissions reductions generally can be used as valid emission credits if either 

“[t]he shutdown or curtailment occurred after the last day of the base year for the 

SIP planning process,” or where the reductions occurred earlier than the last day of 

the base year, if “the projected emissions inventory used to develop the attainment 

demonstration explicitly includes the emissions from such previously shutdown or 

curtailed emission units.” 40 C.F.R. § 51.165(a)(3)(ii)(C)(1)(ii) (the “base year 

requirement”). The base year requirement also is found in EPA’s “Emission Offset 

Interpretive Ruling.” See 40 C.F.R. pt. 51, Appendix S, Section IV.C.3(i)(2). 

A. Rationale For, And Operation Of, The Base Year Requirement

The purpose of the base year requirement is to ensure that emissions from 

new sources that use emission credits are included in the SIP inventory so that the 

pertinent air agency (here, the SCAQMD) will account for these emissions in 

planning its control programs to attain the NAAQS. If emission credits that were 

generated from pre-base year reductions were not included in the SIP inventory 

and subsequently were utilized for new sources, then unanticipated emissions (i.e., 

emissions that were not planned for) from these new sources theoretically could 

keep an area from reaching attainment. In other words, Reasonable Further 

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Progress – toward attaining the NAAQS – in nonattainment areas could be 

impeded if such unplanned-for emissions were to occur. 

The general base year timing obligation (i.e., that the emission reductions 

occur after the last day of the base year) ensures that any emission credits 

generated from a shutdown are included in the pertinent AQMP inventory, such 

that the SCAQMD has to account for these emissions when navigating a path to 

attainment. The exception to the general timing obligation within the base year 

requirement (i.e., that a pre-base year emission reduction can generate emission 

credits so long as those emission credits are explicitly included in the pertinent 

AQMP inventory) exists to allow for the “banking” of emission credits. Without 

this exception within the base year requirement, emission credits would be lost 

every time the pertinent AQMP inventory is updated. See Phase 2 of the Final 

Rule to Implement the 8-hour Ozone National Ambient Air Quality Standard – 

Notice of Reconsideration, 72 Fed. Reg. 31727, 31741 (June 8, 2007) (“There is 

no good rationale to support the removal of ERC as a consequence to updating of 

inventory.”); id. at 31742 (“Should ERC be lost every three years when inventories 

are updated, their marketability would be greatly diminished.”). 

The “banking” of emission credits (i.e., generating credits for later use) is a 

key component of EPA’s NSR Program: 

The concept of generating credits for later use has been a 

fundamental part of the NSR program for decades. See, 

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for example, the “General Preamble for Proposed 

Rulemaking on Approval of State Implementation Plan 

Revisions for Nonattainment Areas,” 44 FR 20372 (April 

4, 1979), indicating that “the state may allow emission 

reductions to be banked for later use under the [Emission 

Offset Interpretive] Ruling and under the state’s 

preconstruction review program under Part D.” . . . [A]s 

far back as 1989, EPA approved the concept of preapplication shutdown credits in certain circumstances 

(primarily where areas had EPA-approved attainment 

plans). 72 Fed. Reg. 31742 (June 8, 2007). 

Indeed, EPA’s Emission Offset Interpretative Ruling, which repeats the base year 

requirement, expressly allows banking: 

5. ‘Banking’ of emission offset credit. For new sources 

obtaining permits by applying offsets after January 16, 

1979, the reviewing authority [here, the SCAQMD] may 

allow offsets that exceed the requirements of reasonable 

progress toward attainment (Condition 3) to be ‘banked’ 

(i.e., saved to provide offsets for a source seeking a 

permit in the future) for use under this [Emission Offset 

Interpretive] Ruling. . . . A reviewing authority may 

allow these banked offsets to be used under the 

preconstruction review program required by Part D, as 

long as these banked emissions are identified and 

accounted for in the SIP control strategy. 40 C.F.R. Part 

51, Appendix S, Section IV.C.5 (emphasis in original). 

In short, the base year requirement allows the use of banked, pre-base year 

emission credits when those banked emission credits are included in the pertinent 

attainment plan inventory. 

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B. Pre-2003 AB 1318 Emission Credits Explicitly Are Included In The 

2007 AQMP Inventory

EPA assessed whether the AB 1318 emission credits satisfied the base year 

requirement by looking to the baseline inventory in the SCAQMD’s most recent 

attainment demonstration, the 2007 AQMP, and the applicable base year, 2002. 

EPA ultimately determined that “a sufficient quantity [of AB 1318 credits] – 

compared to the amount needed for the CPV Sentinel Energy Project, . . . meet the 

CAA offset requirements,” including the base year requirement. PER -000006. 

Specifically, in the Final Rule and in response to Petitioners’ terse comment, EPA 

explained that emission credits generated from pre-base year emission reductions 

comply with the base year requirement: 

CCAT contends that the District has relied on the 

emission reduction credits generated from shutdown 

sources which occurred before the 2002 baseline in the 

2007 AQMP. EPA disagrees. As explained in 

Response III (5), the District adds in a portion of the 

pre-baseline banked emission credits into the inventory 

for each future year. The amount added for each pollutant 

is determined based on historical usage of offsets in the 

basin. Since the baseline inventory is adjusted to account 

for an adequate number of pre-baseline emission 

reductions due to shutdowns, the District is complying 

with the requirements of 40 CFR 

51.165(a)(3)(ii)(C)(1)(ii) and may use such reductions as 

current offsets. PER -000009.1

 

 

1

 EPA Response III (5) provides: “The District accounts for the use [of] credits 

from their internal accounts by adding the average annual quantity of ERCs used 

over the last eight years to the projected inventory for years 2014 and 2020, i.e., 

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Generally, but not always, a court’s review of agency action is limited to the 

arguments and information (i.e., the record) before the agency at the time it took 

action. See McDonnell Douglas Corp. v. United States Dep’t of the Air Force, 375 

F.3d 1182, 1188 (D.C. Cir. 2004) (“Whether [a decision by an administrative 

agency] was arbitrary and capricious must be determined solely upon the basis of 

the arguments and information before the agency at the time.”); Friends of Earth v. 

Hintz, 800 F.2d 822, 828-830 (9th Cir. 1986) (“[J]udicial review of agency action 

is limited to a review of the administrative record.”); but see Chae-Sik Lee v. 

Kennedy, 294 F.2d 231, 234 (D.C. Cir. 1961) (an administrative “order must be 

judged upon the grounds upon which action was based, unless the appellate court 

concludes that the decision already made . . . should properly be based on another 

ground within the power of the appellate court to formulate.”) (internal quotations 

omitted). 

This Court need not formulate additional bases for EPA’s action in order to 

uphold the Final Rule. The record before EPA when it published the Final Rule 

amply demonstrates that the AB 1318 emission credits satisfy the base year 

requirement for at least two reasons. First, pre-2003 emission credits explicitly are 

included in the 2007 AQMP baseline inventory as part of the SCAQMD’s (now 

 

the AQMP assumes that these emissions are in the air. By including such 

emissions in the inventory, the attainment plan has not relied on these emission 

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rescinded) Rule 1309.2 – Offset Budget. Second, pre-2003 emission credits 

explicitly are included in the 2007 AQMP’s growth allowance. Each of these 

explicit inclusions separately demonstrates that the AB 1318 emission credits 

satisfy the base year requirement. 

1. The Rule 1309.2 Offset Budget Accounts For Pre-2003 

Emission Credits

SCAQMD Rule 1309.2 allowed the establishment of the Offset Budget, “an 

emissions bank to provide offsets to sources that otherwise cannot obtain 

offsets. . . . The Offset Budget is designed to be a . . . ‘bank of last resort.’ It 

ensures the availability of offsets, but encourages sources to seek offsets from the 

open market first.” CPV-ER-000044. Emission credits in the Offset Budget were 

to be drawn from the SCAQMD’s NSR account, the very same account from 

which the AB 1318 emission credits were drawn. 

The 2007 AQMP “includes a set aside account of one ton per day for each 

criteria pollutant for the Offset Budget. This line item is to account for emissions 

that may not be included in the AQMP baseline inventories.” Id. (emphasis 

added). Importantly, the 2007 AQMP envisions that the Offset Budget would be 

funded with credits from the SCAQMD’s NSR account generated by pre-2003 

 

reductions, thus they remain creditable for other purposes, such as NSR offsets.” 

PER -000008. 

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shutdowns: “The initial funding of the Offset Budget will be from expired minor 

source shutdown credits for the years 2000 through 2002.” Id. (emphasis added). 

This explicit set aside of one ton per day for each criteria pollutant satisfies 

the base year requirement vis-à-vis the AB 1318 credits. The quantity of emission 

credits included in the baseline inventory via the Offset Budget set aside is 

significantly greater than the quantity of pre-2003 emission credits transferred to 

the AB 1318 Tracking System for use by the CPV Sentinel Energy Project. The 

Offset Budget set aside is 2,000 pounds per day for each criteria pollutant, which 

equates to 730,000 pounds per year (“lbs/yr”). The AB 1318 Tracking System 

contains only 76,760 lbs/yr of pre-2003 PM10 credits. See generally Offset 

Verification Documentation contained in South Coast Public Records Response 

#61991 and #61991B, in the record at V.C. of the Second Corrected Certified List 

of Documents Comprising the Administrative Record. Indeed, the entire AB 1318 

Tracking System contains only 137,799 lbs/yr of PM10 credits. PER -000032, 

PER -000036. 

Thus, the Offset Budget set aside contained in the baseline inventory more 

than accounts for pre-2003 emission credits in the AB 1318 Tracking System (by 

nearly an order of magnitude). Further, the Offset Budget never was utilized by 

the SCAQMD to issue permits and, as indicated above, Rule 1309.2 was rescinded 

by the SCAQMD on February 5, 2010. RJN Ex. 10; see also 40 C.F.R. pt. 52, 

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Subpart F. As such, the Offset Budget emission credits included in the 2007 

AQMP baseline inventory have not been used by other sources. 

In sum, the 2007 AQMP baseline inventory includes 730,000 lbs/yr of pre2003 PM10 emission credits that were to be transferred from the SCAQMD’s NSR 

account to the Offset Budget to be made available to sources just like the CPV 

Sentinel Energy Project. Those emission credits were never utilized. A relatively 

small portion of those emission credits (76,760 lbs/yr) have now been transferred 

from the SCAQMD’s NSR account to the AB 1318 Tracking System to be utilized 

by the CPV Sentinel Energy Project. Thus, there is no question that the pre-2003 

PM10 emission credits in the AB 1318 Tracking System are included in the 2007 

AQMP baseline inventory and therefore satisfy the base year requirement. 

2. The 2007 AQMP’s Growth Projections Already Account For 

Pre-2003 Emission Credits

Petitioners allege that pre-2003 emission credits are “explicitly excluded” 

from the pertinent emissions inventory: “the 2007 AQMP excludes all pre-2003 

credits after finding them unnecessary. . . .” Petitioners Opening Brief at 27. This 

allegation factually is incorrect. As imbedded in the quotation relied upon by the 

Petitioners, the 2007 AQMP does not include additional pre-2003 credits in the 

inventory after finding them unnecessary: “Therefore, no addition to the current 

baseline inventory is necessary for this category.” CPV-ER-000042 (emphasis 

added). Petitioners apparent confusion on this issue may stem from a 

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misunderstanding of the components of the 2007 AQMP inventories, which 

already include growth that, by definition, must be supported by pre-2003 credits. 

The 2007 AQMP’s projection of demand for credits (both open market 

credits and emission credits from the SCAQMD’s NSR account) is based on 

historical usage, and its determination of whether additional pre-2003 credits need 

to be added to the baseline inventory is only a secondary, confirmatory calculation. 

The 2007 AQMP “accounts for growth from new and modified sources based on 

emission offsets used and generated through the AQMD’s New Source Review 

Program.” CPV-ER-000040. The growth projected for sources subject to the NSR 

Program cannot occur without the use of pre-base-year emission credits. Emission 

credits generated from emission reductions (shutdowns, curtailed operations, etc.) 

that occur after the base year do not qualify as “growth” because the emissions that 

would be allowed by utilization of these emission credits as offsets already are 

included in the base year inventory. 

A facility generating post-base year emission credits by definition would 

have been operating and emitting when the base year inventory was calculated. If 

emission credits are generated from, for example, a post-base year shutdown at 

such a facility, the most these credits could do is replace themselves on a poundfor-pound basis. There cannot be a net increase or “growth” in emissions. As 

such, these post-base year credits cannot support growth. Therefore, any emissions 

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credits used to support the growth in 2007 AQMP inventories necessarily must be 

pre-base year emission credits. Accordingly, pre-base year emission credits 

explicitly are included in the 2020 emissions inventory as growth, up to the 

amounts shown in Table 2-8 of the 2007 AQMP – leaving out the Offset Budget 

set aside credits discussed above. See CPV-ER-000037. 

Table 2-8 shows the amount of pre-2003 emission credits that are included 

in the 2007 AQMP’s growth allowance.2

 Table 2-8 provides that one ton of PM10

per day is included in the growth allowance for point sources (9 tons per day “with 

growth” minus 8 tons per day “no growth”). 

Petitioners wholly ignore the growth allowance, focusing their allegations on 

the 2007 AQMP’s projection of demand for emission credits and its determination 

of whether additional pre-2003 emission credits need to be added to the 

inventories. As indicated above, this projection of demand and determination of 

need is only a secondary, confirmatory calculation. This projection and 

determination was performed to confirm that the growth estimates were sufficient 

to cover the likely use of pre-2003 emission credits. The SCAQMD ultimately 

determined that no additional pre-2003 emission credits were needed because the 

growth projections imbedded in the 2007 AQMP inventories were high enough to 

 

2

 In the 2007 AQMP, PM2.5 and PM10 are treated the same, as PM2.5 (particles less 

than 2.5 microns in size) is a subset of PM10 (particles less than 10 microns in 

size). CPV-ER-000040. 

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28

cover likely use of pre-2003 emission credits; therefore, no additional pre-2003 

emission credits were added to the inventories. However, the outcome of this 

secondary, confirmatory calculation in no way means that pre-2003 emission 

credits are excluded from the pertinent emissions inventory. On the contrary, pre2003 emission credits explicitly are included in the pertinent inventory to support 

future emissions growth. 

CONCLUSION

We admire EPA’s desire for perfection in rulemaking, as exemplified by its 

request to remand the rule without vacatur to clarify its reasoning. However, 

rulemakings are not required to be perfect. Here, the rule need only not be 

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with 

the law. 5 U.S.C. § 706. Even when an agency explains its decision with “less 

than ideal clarity,” the court will not upset the decision on that account “if the 

agency’s path may reasonably be discerned.” Alaska v. Dept. of Envtl. 

Conservation v. EPA, 540 U.S. 461, 497 (2004). For the reasons set forth herein, 

EPA more than satisfied this standard. Therefore, the rulemaking need not be 

remanded and/or vacated. Rather, this Court has the authority to and should 

uphold EPA’s rulemaking. 

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Dated: January 27, 2012 Respectfully submitted, 

 

 /s/ Joshua T. Bledsoe 

Michael J. Carroll 

Joshua T. Bledsoe 

LATHAM & WATKINS LLP 

650 Town Center Dr., Suite 2000 

Costa Mesa, CA 92626 

Telephone: (714) 540-1235 

Facsimile: (714) 755-8290 

Counsel for CPV Sentinel, LLC

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UNOPPOSED MOTION FOR EXPEDITED ORAL ARGUMENT 

Ninth Circuit Rule 34-3(5) allows for motions to expedite a case based on 

there being “good cause” under 28 U.S.C. Section 1657. “Good cause” is shown 

“if a right under the Constitution of the United States or a Federal Statute . . . 

would be maintained in a factual context that indicates that a request for expedited 

consideration has merit.” 28 U.S.C. § 1657(a). This provision makes it 

“abundantly clear that Congress intended to give preference on crowded court 

dockets to federal questions.” Zukowski v. Howard, Needles, Tammen, & 

Bergendoff, 115 F.R.D. 53, 55 (D.Colo. 1987). 

This Court has jurisdiction pursuant to Section 307(b)(1) of the Clean Air 

Act, 42 U.S.C. § 7607(b)(1). See Petitioners’ Corrected Opening Brief at 1, 

Statement of Jurisdiction; Respondents’ Answering Brief at 1, Statement of 

Jurisdiction. Thus, this case concerns a federal question. Further, the challenged 

rulemaking, by providing a mechanism to transfer emission credits, imparts rights 

to Sentinel under the Clean Air Act, a federal statute. These rights allow the CPV 

Sentinel Energy Project to offset its emissions and, therefore, to legally commence 

operations. If the rulemaking were to be vacated, it could adversely impact the 

CPV Sentinel Energy Project’s right to commence operations and supply much 

needed electricity to the region. Accordingly, having shown “good cause” under 

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2

28 U.S.C. § 1657, Sentinel moves for expedited oral argument pursuant to Ninth 

Circuit Rule 34-3(5). 

Sentinel contacted all parties involved in this case pursuant to Ninth Circuit 

Rule 27-1 on January 20, 2012 via electronic mail to ask if they would oppose this 

motion. Declaration of Joshua T. Bledsoe. All parties state that they do not 

oppose this motion. Id.

Dated: January 27, 2012 Respectfully submitted, 

 

 /s/ Joshua T. Bledsoe 

Michael J. Carroll 

Joshua T. Bledsoe 

LATHAM & WATKINS LLP 

650 Town Center Dr., Suite 2000 

Costa Mesa, CA 92626 

Telephone: (714) 540-1235 

Facsimile: (714) 755-8290 

Counsel for CPV Sentinel, LLC

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CERTIFICATE OF COMPLIANCE 

REGARDING WORD LIMITATION

Pursuant to Federal Rule of Appellate Procedure Rule 32(a)(7)(C) and 

Circuit Rule 32-1, I certify that the attached BRIEF OF INTERVENOR CPV 

SENTINEL, LLC IN SUPPORT OF RESPONDENTS is proportionately 

spaced, has a typeface of Times New Roman, 14 points, and contains 6,530 words, 

including the headings, footnotes, and quotations, but excluding the Disclosure 

Statement, Table of Contents, Table of Authorities, the Motion for Expedited Oral 

Argument, the Statement of Related Cases, this Certificate of Compliance, and the 

Certificate of Service, which complies with the 14,000-word limitation. I have 

relied on Microsoft WORD’s word count feature for this calculation. 

Dated: January 27, 2012 Respectfully submitted, 

 

 /s/ Joshua T. Bledsoe 

Michael J. Carroll 

Joshua T. Bledsoe 

LATHAM & WATKINS LLP 

650 Town Center Dr., Suite 2000 

Costa Mesa, CA 92626 

Telephone: (714) 540-1235 

Facsimile: (714) 755-8290 

Counsel for CPV Sentinel, LLC

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STATEMENT OF RELATED CASES

Pursuant to Ninth Circuit Rule 28-2.6, Intervenor CPV Sentinel, LLC is not 

aware of any related cases currently pending before this court. 

Dated: January 27, 2012 Respectfully submitted, 

 

 /s/ Joshua T. Bledsoe 

Michael J. Carroll 

Joshua T. Bledsoe 

LATHAM & WATKINS LLP 

650 Town Center Dr., Suite 2000 

Costa Mesa, CA 92626 

Telephone: (714) 540-1235 

Facsimile: (714) 755-8290 

Counsel for CPV Sentinel, LLC

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1

CERTIFICATE OF SERVICE 

I hereby certify that on January 27, 2012, I electronically filed the foregoing 

Brief of Intervenor CPV Sentinel, LLC in Support of Respondents with the Clerk 

of the Court for the United States Court of Appeals for the Ninth Circuit by using 

the appellate CM/ECF system. I certify that all participants in the case are 

registered CM/ECF users and that service will be accomplished by the appellate 

CM/ECF system. 

I further certify that on January 27, 2012, four copies of Intervenor CPV 

Sentinel, LLC’s Supplemental Excerpts of Record were served via Federal Express 

to the Clerk of the Court, and one copy each was served to counsel for Petitioner 

California Communities Against Toxics, counsel for Petitioner Communities for a 

Better Environment, counsel for Respondents United States Environmental 

Protection Agency (“EPA”), Lisa Jackson, Administrator of EPA, and Jared 

Blumenfeld, Regional Administrator, Region IX, EPA, and counsel for Intervenor 

South Coast Air Quality Management District, at the addresses below. 

Dated: January 27, 2012 

 

 /s/ Joshua T. Bledsoe 

Joshua T. Bledsoe 

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2

Addressees:

Office of the Clerk 

James R. Browning Courthouse 

U.S. Court of Appeals 

95 Seventh Street 

San Francisco, CA 94103 

Overnight Mailing Address of the 

Clerk of the Court

Angela Johnson Meszaros 

Timothy R. Grabiel 

Law Offices of Angela Johnson Meszaros 

1107 Fair Oaks Ave., Suite 246 

South Pasadena, CA 91030 

Attorneys for Petitioner 

California Communities Against 

Toxics 

Shana Lazerow 

Maya Golden-Krasner 

Communities for a Better Environment 

1904 Franklin St., Suite 600 

Oakland, CA 94612 

Attorneys for Petitioner 

Communities for a Better 

Environment

Amy J. Dona 

U.S. Department of Justice 

Environment & Natural Resources Division 

P.O. Box 23986 

Washington, D.C. 20026-3986 

Attorney for Respondents 

United States Environmental 

Protection Agency et al. 

Ann Lyons 

U.S. Environmental Protection Agency 

Office of Regional Counsel 

75 Hawthorne Street 

San Francisco, CA 94105 

Attorney for Respondents 

United States Environmental 

Protection Agency et al. 

Kurt R. Wiese 

Barbara Baird 

Lauren Nevitt 

Megan Lorenz 

South Coast Air Quality Management District 

21865 Copley Dr. 

Diamond Bar, CA 91765 

Attorneys for Intervenor

South Coast Air Quality 

Management District

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No. 11-71127 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 

CALIFORNIA COMMUNITIES AGAINST TOXICS, an unincorporated 

association; COMMUNITIES FOR A BETTER ENVIRONMENT 

Petitioners, 

v. 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., 

Respondents. 

_______________ 

ON PETITION FOR REVIEW OF AN ORDER OF THE 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

DECLARATION OF JOSHUA T. BLEDSOE IN SUPPORT OF 

INTERVENOR CPV SENTINEL, LLC’S MOTION FOR EXPEDITED 

ORAL ARGUMENT 

 Michael J. Carroll 

Joshua T. Bledsoe 

LATHAM & WATKINS LLP 

650 Town Center Dr., Suite 2000 

Costa Mesa, CA 92626 

Telephone: (714) 540-1235 

Facsimile: (714) 755-8290 

Counsel for CPV Sentinel, LLC

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1

I, Joshua T. Bledsoe declare: 

1. I am an attorney at law admitted to practice in this Court and am one 

of the attorneys representing Intervenor CPV Sentinel, LLC (“Sentinel”) in this 

matter. I have personal knowledge of the following and could and would testify 

competently thereto, if called as a witness. 

2. On Friday, January 20, 2012 at 1:23 PM, I sent an email to Angela 

Johnson Meszaros, Timothy R. Grabiel, Shana Lazerow, and Maya GoldenKrasner, attorneys for Petitioners, at the email addresses listed in the caption of the 

Petition for Review informing them of Sentinel’s intent to file a motion for 

expedited oral argument on January 27, 2012 and asking if they would oppose 

Sentinel’s motion. On Thursday, January 26, 2012 at 11:49 AM, I received an 

email from Shana Lazerow indicating that Petitioners will not oppose Sentinel’s 

motion. 

3. On Friday, January 20, 2012 at 1:23 PM, I sent an email to Amy J. 

Dona and Ann Lyons, attorneys for Respondents, informing them of Sentinel’s 

intent to file a motion for expedited oral argument on January 27, 2012 and asking 

if they would oppose Sentinel’s motion. On Monday, January 23, 2012 at 1:02 

PM, I received an email from Amy J. Dona indicating that EPA will not oppose 

Sentinel’s motion. 

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2

4. On Friday, January 20, 2012 at 1:23 PM, I sent an email to Lauren 

Nevitt, Barbara Baird, and Kurt Wiese, attorneys for Intervenor South Coast Air 

Quality Management District, informing them of Sentinel’s intent to file a motion 

for expedited oral argument on January 27, 2012 and asking if they would oppose 

Sentinel’s motion. On Friday, January 20, 2012 at 6:21 PM, I received an email 

from Lauren Nevitt indicating that the South Coast Air Quality Management 

District will not oppose Sentinel’s motion. 

I declare under penalty of perjury under the laws of the United States that 

the foregoing is true and correct. 

Executed at Costa Mesa, California, on January 27, 2012. 

 

 /s/ Joshua T. Bledsoe 

Joshua T. Bledsoe 

LATHAM & WATKINS LLP 

650 Town Center Dr., Suite 2000 

Costa Mesa, CA 92626 

Telephone: (714) 540-1235 

Facsimile: (714) 755-8290 

Counsel for CPV Sentinel, LLC

Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-3 Page: 3 of 3 (46 of 47)
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the 

United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system 

on (date) . 

I certify that all participants in the case are registered CM/ECF users and that service will be 

accomplished by the appellate CM/ECF system.

CERTIFICATE OF SERVICE 

When All Case Participants are Registered for the Appellate CM/ECF System

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the 

United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system 

on (date) . 

 

Participants in the case who are registered CM/ECF users will be served by the appellate 

CM/ECF system. 

 

I further certify that some of the participants in the case are not registered CM/ECF users. I 

have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it 

to a third party commercial carrier for delivery within 3 calendar days to the following 

non-CM/ECF participants:

Signature (use "s/" format)

CERTIFICATE OF SERVICE 

When Not All Case Participants are Registered for the Appellate CM/ECF System

9th Circuit Case Number(s)

*********************************************************************************

Signature (use "s/" format)

NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).

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Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-4 Page: 1 of 1 (47 of 47)