No. 11-71127

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CALIFORNIA COMMUNITIES AGAINS T TOXICS, an unincorporated association; COMMUNITIES FOR A BETTER ENVIRONMENT Petitioners,

v. UNITED STATES ENVIRONMENTAL PR OTECTION AGENCY, LISA P. JACKSON, Administrator, U.S. Enviro nmental Protection Agency, and JARED BLUMENFELD, Regional Administrato r, Region IX, U.S. Environmental Protection Agency, Respondents.

_______________ ON PETITION FOR REVIEW OF AN ORDER OF THE UNITED STATES ENVIRONMEN TAL PROTECTION AGENCY

BRIEF OF INTERVENOR CPV SE NTINEL, LLC IN SUPPORT OF RESPONDENTS AND UNOPPOSED MO TION 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 Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 1 of 41 (1 of 47)i CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appe llate Procedure 26.1, Intervenor CPV Sentinel, LLC submits this disclosure statem ent. CPV Sentinel, LLC is an indirect subsidiary of Competitive Power Ventur es Holdings, LLC, General Electric Company, and Mitsubishi Corporation. Dated: January 27, 2012 /s/ Joshua T. Bl edsoe 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 Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 2 of 41 (2 of 47)ii TABLE OF CONTENTS Table of Au thorities ..................................................................................................iv Glossa ry.....................................................................................................................vi Introduc tion................................................................................................................1 Statement of Ju risdiction............................................................................................2 Statement of the Issues...............................................................................................2 Statement of the Case.................................................................................................2 Summary of th e Argument.........................................................................................2 Argument....................................................................................................................5 I. Unique Aspects Of The CPV Sentin el 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 Belie ves Already Has Attained the PM 10 NAAQS........................................................................................9 C. The Potential Worst Case Emissi ons From The CPV Sentinel Energy Project Are Below The Fe deral 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 Proj ect Underwent Extensive Environmental Review By Th e CEC And Was Found To Have No Adverse Environm ental 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 Requirement s, Surplus And Quantifiable Requirements, And The Relevan cy Of SCAQMD ’S Rule 1315.............................16 III. The AB 1318 Emission Credits Are Included In The AQMP Emissions Inventory And, Therefor e, Are Creditable As Offsets...........................17 A. Rationale For, And Operation Of , The Base Year Requirement ........18 Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 3 of 41 (3 of 47)iii B. Pre-2003 AB 1318 Emission Credits Explicitly Are Included In The 2007 AQMP I nventory.................................................................21 1. The Rule 1309.2 Offset B udget Accounts For Pre-2003 Emission Cr edits .......................................................................23 2. The 2007 AQMP’s Growth Projections Already Account For Pre-2003 Emi ssion Cred its.................................................25 Conclusi on ...............................................................................................................28 Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 4 of 41 (4 of 47)iv TABLE OF AUTHORITIES

CASES Alaska v. Dept. of Env tl. Conservation v. EPA , 540 U.S. 461 (2 004)................................................................................... 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. §§ 740 1-7671q ............................................................................. 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, Subpar t F ........................................................................... 26 Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 5 of 41 (5 of 47)v FEDERAL REGISTER NOTICES 72 Fed. Reg. 31727 (J une 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. C ode § 2108 0 ........................................................................ 13 SCAQMD Rule 1309. 2................................................................................. 4, 23, 24 SCAQMD’s Rule 1315 ................................................................................. 4, 16, 17 Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 6 of 41 (6 of 47)vi 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
PM 10 Particulate matter with di ameter of less than 10 microns
PM 2.5 Particulate matter with di ameter of less than 2.5 microns Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 7 of 41 (7 of 47)vii SCAQMD Intervenor South Coast Air Quality Management District SCE Southern California Edison SIP State Implementation Plan
SO x Sulfur Oxide Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 8 of 41 (8 of 47)1 INTRODUCTION California Communities Against Toxics (“CCAT”) and Communities for a Better Environment (“CBE”) (collectivel y “Petitioners”) challenge Respondent United States Environmental Protection Agency’s (“EPA” and together with Administrator Lisa P. Jackson and Reg ional Administrator Jared Blumenfeld, collectively “Respondents”) final rule en titled “Revision to the South Coast Portion of the California State Implemen tation Plan, CPV Sentinel Energy Project, [California Assembly Bill] AB 1318 Trac king 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 federa l CAA requirements the tr ansfer of specifically identified emission credits for particulate matter smaller than 10 microns in size (“PM 10 ”) and sulfur oxides (“SO x ”). CPV Sentinel, LLC (“Sentinel”) was gran ted leave to intervene in support of Respondents in these proceedings by the C ourt 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 Se ntinel Energy Project, a nominally rated 850-megawatt electrical generating facility located in Riverside County near Palm Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 9 of 41 (9 of 47)2 Springs, California (“CPV Sentinel Ener gy 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 Respondent s’ 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 Se ntinel Energy Project is unnecessary and environmentally detrimental are fals e. Following extensive review and participation by all interest ed parties (including the Petitioners), all relevant California agencies and the state legislatur e found that the Project is necessary for energy reliability and the integration of renewable energy sources in Southern California. In addition to making possi ble 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 desi gned, and will be opera ted, to minimize environmental and public health impacts. Additionally, the Project will provide significant environmental mitigation resources to improve air quality in the vicinity Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 10 of 41 (10 of 47)3 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 ai r basin that California has requested be redesignated as in “attain ment” of the federal PM 10 standards. PM 10 and SO x emission credits would no longer be required upon EPA’s approval of the redesignation request. Furt hermore, even without a redesignation, Project emissions of PM 10 are below the threshold at which federal regulations require the offsetting of PM 10 emissions. Nevertheless, the Pro ject will fully offset its PM 10 emissions (as well as PM 10 precursor emissions of SO x ) 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 fo r further improvements to air quality. Contrary to Petitioners’ arguments, EPA’s approval of the Final Rule satisfied all applicable procedural require ments. In addition, Petitioners had actual notice and possession of the documents that are the subject of their procedural claims. Petitioners have waived their claims re garding 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 exaggerate d and inaccurate in certain respects. Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 11 of 41 (11 of 47)4 Finally, even if these claims were properly before the Cour t, and even if they were entirely valid, only an immaterial quantity of emission credits would be affected. The approval status of South Coas t Air Quality Management District’s (“SCAQMD”) Rule 1315 has no re levance to this case. The emission credits that are at issue, and that were specifically an alyzed in the rulemaki ng, are those in the AB 1318 Tracking System. The status of the remaining emission credits in the SCAQMD’s New Source Review (“NSR”) ac count, which is the subject of Rule 1315, is not at issue here. The emission credits that the CPV Sen tinel 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, EP A’s rulemaking is supported by the record the agency relied on, and is neith er arbitrary nor capricious. Therefore, EPA’s rulemaking should be upheld without remand or vacatur. Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 12 of 41 (12 of 47)5 ARGUMENT I. UNIQUE ASPECTS OF THE CPV SENTINEL ENERGY PROJECT DEMONSTRATE A PROJECT IN STARK CONTRAST TO THAT DEPICTED BY PETITIONERS Petitioners have atte mpted to portray the CPV Sen tinel Energy Project as an unnecessary and unhealthy project for Southe rn California, when the reality is anything but. Petitioners seek to substitute their judgment for that of the California legislature, arguing that the state legislat ure made an “ill-advised policy decision” in passing AB 1318. Petitioners’ Opening Brie f at 9. Petitioners submitted several declarations with their opening br ief 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 Mo tion 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 cont rast 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’ char acterizations, has been found to be necessary, beneficial, and environmentally friendly. Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 13 of 41 (13 of 47)6 A. The CPV Sentinel Energy Project Will Fulfill Multiple Needs In Southern California The Petitioners opine that the state le gislature 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 Califor nia needs new generation projects like the CPV Sentinel Energy Project to fulfill current and future electricity generation needs, to support development of interm ittent renewable energy resources, and to support the economy. It should be noted th at the Petitioners participated in the legislative debate on AB 1318 in bot h the Assembly and the Senate, see Intervenor CPV Sentinel, LLC’s Request To Take Judi cial Notice (hereinafter “RJN”) Ex. 11, and that AB 1318 passed by supe rmajority 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 “r oadmap” for the state’s energy policy and establish an electricity “loading order” th at ensures more efficient, lower polluting sources are brought on line first after rene wable generation, displacing electricity from older, less efficient power plants a nd dirtier out-of-state coal-fired plants. RJN Ex. 5 at 4. The EAP recognizes modern natural gas facilities as more Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 14 of 41 (14 of 47)7 efficient, lower polluting sources. Id . at 5-6. The most recent EAP update, from 2008, also emphasizes the need for “peaki ng generation that runs only a small number of hours every year, primarily duri ng the summer months.” RJN Ex. 6 at 10. The CPV Sentinel Energy Project is specifically designe d to meet these needs. In 2008, the CPUC initially approved Southern California Edison’s (“SCE”) Power Purchase Agreement (“PPA”) wi th the CPV Sentinel Energy Project because, among other reasons, it “is needed to preserve system reliability.” RJN Ex. 7 at 15. The CP UC stated that the CPV Sentin el 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 thes e statements in its April 14, 2011 approval of the amended PPA and identified a dditional issues that increase the need for the CPV Sentinel Energy Project. Regarding relia bility issues, the CP UC 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 us e OTC technology and will have to come into compliance with the new policy. It is unlikely all of these generation facilities Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 15 of 41 (15 of 47)8 will be able to bear the high costs of in stalling new cooling systems, leading the CPUC to conclude: “[t]he CPV facility, which is lo cated in the critical Los Angeles Basin local area, does not use OT C and can serve as a replacement for some of this OTC genera tion that may retire.” Id

. The CEC’s certification of the CPV Sentinel Energy Project further demonstrates why the Project meets vital needs in Southern Ca lifornia. 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 flexib le back-up power “necessary to integrate some of the growing generation from inte rmittent wind and solar generation.” RJN Ex. 9 at GHG-9. Accordingl y, the CEC concluded that the Project “will foster the addition of renewable genera tion into the electricity system, which will further reduce system GHG [gree nhouse 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 ar ea and firm up the reliability of the regional electricity grid, thereby reduci ng regional dependence on imported power. Id . at GHG-11 and Project Description-10. Beyond these significant environmental a nd 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 Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 16 of 41 (16 of 47)9 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 w ill 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 PM 10 NAAQS Pursuant to the CAA, EPA has esta blished National Ambient Air Quality Standards (“NAAQS”) for six criteria pollutants: carbon monoxide; lead; nitrogen dioxide; ozone; particulate ma tter; 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 pa rticular pollutant. 42 U.S.C. § 7407(d). New sources of pollution in nonattainme nt areas must offset their emission increases. 42 U.S.C. § 7503(c). The CPV Sentinel Energy Pro ject 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 nonatta inment with the NAAQS for PM 10 . Petitioners’ Opening Brief at 3. Thus, the Project is required to offset its emissions of PM 10 . Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 17 of 41 (17 of 47)10 42 U.S.C. § 7503(c). It also is required to offset its emissions of SO x because SO x is a precursor to PM 10 . 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 PM 10 NAAQS. RJN Ex. 3. This redesignation request indicates th at the SCAQMD and the California Air Resources Board believe the Salton Sea Air Basin attained the PM 10 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 PM 10 or SO x 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 sour ces to obtain emission offsets before commencing operation in no nattainment 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 PM 10 . 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 PM 10 . While the CPV Sentinel Energy Project still is required by California law to obtain PM 10 offsets, the Project’s potential emissions are below the pertinent Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 18 of 41 (18 of 47)11 federal threshold. In its commissioni ng year, when the highest emissions are expected, the Project’s emissions would be approximately 59.06 tons of PM 10 per year, nearly 11 tons below the federal threshold. The CPV Sentinel Energy Project’s compliance with the federal offs et threshold exemplifies the Project’s clean emissions profile and provides c ontext for Petitioners’ allegations of environmental harm. See e

. g ., Petitioners’ O pposition to Motion For Voluntary Remand of the Record at 2-3 (alleging e nvironmental harm due to constructionrelated and operations-re lated air emissions).
D. The CPV Sentinel Energy Project’s AB 1318 Emission Credits Are Doubly Effective Due To The U nderlying 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 environmen tal benefit relative to emission credits acquired from private parties on the open market, as is traditionally done. AB 1318 required the CPV Sentinel Energy Proj ect to pay fees to the SCAQMD before the emission credits could be transfe rred. 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

. Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 19 of 41 (19 of 47)12 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 th e open market, which is how emission credits typically are obtained for a proj ect such as the CPV Sentinel Energy Project, funds are paid to a private seller th at 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 Sen tinel 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 o ccurred to create the AB 1318 emission credits, but also over $53 million in additional emission reductions.
E. The Sentinel Energy Project Unde rwent Extensive Environmental Review By The CEC And Was Found To Have No Adverse Environmental Impacts Contrary to Petitioners’ allega tions of environmental harm, see e . g ., Petitioners’ Opposition to Mo tion For Voluntary Remand of the Record at 2-3 (alleging environmental harm due to construction-related and operations-related air Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 20 of 41 (20 of 47)13 emissions), the CEC determined, after exte nsive review pursuant to the California Environmental Quality Act (“CEQA”), that the CPV Sentinel Energy Project will not create any significant adverse envi ronmental impacts. CEQA requires environmental review of certain discretionary agency actions. See Cal. Pub. Res. Code § 21080. The purpose of a CEQA analys is is to: (1) inform decision makers and the public about the potential, signifi cant 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) disc lose the agency’s reason for approving the project if significant environmental effect s are involved. Cal. Code Regs. tit. 14, § 15002(a). Notably, Petitioners actively participated in the CEC proceedings. See Respondents’ Motion To Take Judicial Noti ce, Ex. 1 at 3 (Petitioners’ petitions to intervene in the CEC proceedings refe renced at CEC docket logs 55903 and 54411). As required by CEQA, the CEC anal yzed a wide range of potential environmental impacts, and found all impacts to be either insignificant or mitigated to the point of insignifi cance. The potential environmental impacts evaluated by the CEC include: (1) GHG emissions; (2 ) air quality impacts; (3) public health concerns; (4) worker safety concer ns; (5) waste and hazardous materials management; (6) biological resources impacts; (7) soil and water resources Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 21 of 41 (21 of 47)14 impacts; (8) cultural resources impact s; (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 c onclusions of law that support the CEC’s ultimate conclusion that the CPV Sen tinel 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 th e 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 CE QA analysis demonstrates that the CPV Sentinel Energy Project will not create any signifi cant adverse environmental impacts. Rather, the Project will have significant beneficial effects, both environmental and otherwise, as described herein.
F. The Sentinel Energy Project Purpos ely 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 Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 22 of 41 (22 of 47)15 e . g ., Declaration of Robert Cabrales (descr ibing “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 fr eeways and railroads.”). While the CPV Sentinel Energy Proj ect 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 mi les 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 evid ence that the Project will adversely impact local schools, u tilities, recreational parks, emergency services, or law enforcement.” Id . at Socioeconomics-2. The CEC found that “[a]ll potential hea lth 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 “e nvironmental justice” as the “fair treatment of people of all races, cultures, a nd 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 cons idered this definition, Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 23 of 41 (23 of 47)16 and found that while there are minority popula tions within a six-mile radius of the CPV Sentinel Energy Project, the “Proj ect will not cause or contribute to disproportionate impacts upon minor ity populations.” RJN Ex. 9 at Socioeconomics-6.
II. SENTINEL AGREES WITH RESP ONDENT EPA’S RESPONSES TO ALLEGATIONS REGARDING PR OCEDURAL 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 doc uments EPA relied upon in this rulemaking was abundantly cl ear from the proposed rulemaking, and EPA’s course of dealing with Petitioners included letters that referenced the record. During the CEC proceedings, Pe titioners actually received, and submitted expert testimony on, the documents they cl aim that EPA failed to identify and make available. For these reasons, and ot hers set forth in EPA’s Answering Brief, Petitioners’ claims of procedur al error are without merit. See Respondents’ Answering Brief at 14-21. Next, Sentinel agrees with EPA th at Petitioners waived their claims regarding the quantifiability and surplus natu re of select emission credits in the AB 1318 Tracking System by failing to comment on these issues with sufficient Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 24 of 41 (24 of 47)17 specificity during the rulemaking. Sentinel also agrees that ev en if these claims had not been waived, they lack merit in cer tain respects. Furthermore, even if the claims had not been waived and were presumed to be meritorious, only an immaterial quantity of emission credits w ould be affected. EPA’s finding that a sufficient number of emission credits meet the CAA offset requirements, including the surplus and quantifiable requi rements, 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 th is 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 CREDIT S ARE INCLUDED IN THE AQMP EMISSIONS INVENTO RY 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
PM 10 emission credits pre-dating 2003 have been excluded from this baseline inventory and, therefore, do not meetthe baseline requirement. Petitioners’ Opening Brief at 27. Contrary to Pe titioners’ assertions, these AB 1318 emission Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 25 of 41 (25 of 47)18 credits meet the baseline requirement beca use 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 afte r 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 emissi ons 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 th e NAAQS. If emission credits that were generated from pre-base ye ar reductions were not included in the SIP inventory and subsequently were utilized for new sour ces, 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 Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 26 of 41 (26 of 47)19 Progress – toward attaining the NAAQS – in nonattainment areas could be impeded if such unplanned-for emissions were to occur. The general base year timing obligati on (i.e., that the emission reductions occur after the last day of the base year) ensures that any emission credits generated from a shutdown ar e included in the pertinent AQMP inventory, such that the SCAQMD has to a ccount 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 requi rement, emission credits would be lost every time the pertinent AQ MP inventory is updated. See Phase 2 of the Final Rule to Implement the 8-hour Ozone Na tional 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 conse quence to updating of inventory.”); id. at 31742 (“Should ERC be lost ev ery three years when inventories are updated, their marketability w ould 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 cred its for later use has been a fundamental part of the NSR program for decades. See, Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 27 of 41 (27 of 47)20 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 fo r later use under the [Emission Offset Interpretive] Ruling and under the state’s preconstruction review program under Part D.” . . . [A]sfar back as 1989, EPA approved the concept of preapplication shutdown credits in certain circumstances (primarily where areas ha d EPA-approved attainment plans). 72 Fed. Reg. 31742 (June 8, 2007). Indeed, EPA’s Emission Offset Interpretativ e 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 th e requirements of reasonable progress toward attainment (C ondition 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 progr am 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 a llows the use of banked, pre-base year emission credits when those banked emission credits are included in the pertinent attainment plan inventory. Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 28 of 41 (28 of 47)21 B. Pre-2003 AB 1318 Emission Credits Explicitly Are Included In The 2007 AQMP Inventory EPA assessed whether the AB 1318 emissi on credits satisfied the base year requirement by looking to the baseline i nventory in the SCAQMD’s most recent attainment demonstration, the 2007 AQMP, and the applicable base year, 2002. EPA ultimately determined that “a su fficient quantity [of AB 1318 credits] – compared to the amount need ed for the CPV Sentinel En ergy 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 generate d 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 am ount 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 Di strict 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 proj ected inventory for years 2014 and 2020, i

. e ., Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 29 of 41 (29 of 47)22 Generally, but not always, a court’s revi ew 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) (“Whet her [a decision by an administrative agency] was arbitrary and capricious must be determined solely upon the basis of the arguments and information befo re 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 th e appellate court to formulat e.”) (internal quotations omitted). This Court need not formulate additiona l bases for EPA’s action in order to uphold the Final Rule. The record befo re EPA when it published the Final Rule amply demonstrates that the AB 1318 em ission credits satisfy the base year requirement for at least two reasons. Fi rst, pre-2003 emission credits explicitly are included in the 2007 AQMP baseline invent ory 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 Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 30 of 41 (30 of 47)23 rescinded) Rule 1309.2 – Offset Budge t. Second, pre-2003 emission credits explicitly are included in the 2007 AQMP’s growth allowance. Each of these explicit inclusions separately demonstr ates that the AB 1318 emission credits satisfy the base year requirement.
1. The Rule 1309.2 Offset B udget Accounts For Pre-2003 Emission Credits SCAQMD Rule 1309.2 allowed the estab lishment of the Offset Budget, “an emissions bank to provide offsets to sources that otherwise cannot obtain offsets. . . . The Offset B udget is designed to be a . . . ‘bank of last resort.’ It ensures the availability of offsets, but en courages sources to seek offsets from the open market first.” CPV-ER-000044. Emi ssion 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 acc ount 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 envisi ons that the Offset Budget would be funded with credits from the SCAQMD’ s NSR account generated by pre-2003

reductions, thus they remain creditable fo r other purposes, such as NSR offsets.” PER -000008. Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 31 of 41 (31 of 47)24 shutdowns: “The initial funding of the O ffset 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 inventor y 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 th e CPV Sentinel Energy Project. The Offset Budget set aside is 2,000 pounds per day for each criteria pollutant, which equates to 730,000 p ounds per year (“lbs/yr”). The AB 1318 Tracking System contains only 76,760 lbs/yr of pre-2003 PM 10 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 PM 10 credits. PER -000032,
PER -000036. Thus, the Offset Budget set aside cont ained in the baseline inventory more than accounts for pre-2003 emission credits in the AB 1318 Tracking System (by nearly an order of magnitude). Furthe r, the Offset Budget never was utilized by the SCAQMD to issue permits and, as i ndicated above, Rule 1309.2 was rescinded by the SCAQMD on February 5, 2010. RJN Ex. 10; see also 40 C.F.R. pt. 52, Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 32 of 41 (32 of 47)25 Subpart F. As such, the Offset B udget 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 PM 10 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 cr edits 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
PM 10 emission credits in the AB 1318 Track ing 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 emi ssion 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 unnece ssary: “Therefore, no addition to the current baseline inventory is necessary for th is category.” CPV-ER-000042 (emphasis added). Petitioners apparent confus ion on this issue may stem from a Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 33 of 41 (33 of 47)26 misunderstanding of the components of the 2007 AQMP inventories, which already include growth that, by definitio n, must be supported by pre-2003 credits. The 2007 AQMP’s projection of demand for credits (both open market credits and emission credits from th e SCAQMD’s NSR acco unt) is based on historical usage, and its determination of whether additional pre-2003 credits need to be added to the baseline inventory is on ly 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 pr ojected 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 quali fy 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 ba se year inventory was calculated. If emission credits are generated from, for ex ample, a post-base year shutdown at such a facility, the most th ese 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 s upport growth. Therefore, any emissions Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 34 of 41 (34 of 47)27 credits used to support the growth in 2007 AQMP inventories necessarily must be pre-base year emission credits. Accord ingly, pre-base year emission credits explicitly are included in the 2020 emissi ons 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-200 3 emission credits that are included in the 2007 AQMP’s growth allowance. 2 Table 2-8 provides that one ton of PM 10 per day is included in the growth allowan ce for point sources (9 tons per day “with growth” minus 8 tons per day “no growth”). Petitioners wholly ignore the growth a llowance, 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 th at the growth estimates were sufficient to cover the likely use of pre-2003 emi ssion credits. The SCAQMD ultimately determined that no additional pre-2003 emission credits we re needed because the growth projections imbedded in the 2007 AQMP inventories were high enough to

2 In the 2007 AQMP, PM 2.5 and PM 10 are treated the same, as PM 2.5 (particles less than 2.5 microns in size) is a subset of PM 10 (particles less than 10 microns in size). CPV-ER-000040. Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 35 of 41 (35 of 47)28 cover likely use of pre-2003 emission cr edits; therefore, no additional pre-2003 emission credits were added to the invent ories. 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 perfe ct. Here, the rule need only not be arbitrary, capricious, an abuse of discretio n, 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 c ourt 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 th e reasons set forth herein, EPA more than satisfied this standard. Therefore, the rulemaking need not be remanded and/or vacated. Ra ther, this Court has the authority to and should uphold EPA’s rulemaking. Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 36 of 41 (36 of 47)29 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 Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 37 of 41 (37 of 47)UNOPPOSED MOTION FOR EX PEDITED 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 Un ited States or a Federal Statute . . . would be maintained in a factual context th at 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. Fu rther, the challenged rulemaking, by providing a mechanism to transfer emission credits, imparts rights to Sentinel under the Clean Air Act, a fede ral statute. These rights allow the CPV Sentinel Energy Project to offset its emis sions 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. A ccordingly, having shown “good cause” under Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 38 of 41 (38 of 47)2 28 U.S.C. § 1657, Sentinel moves for expe dited 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. Bledso e. 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 Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 39 of 41 (39 of 47)CERTIFICATE OF COMPLIANCE REGARDING WORD LIMITATION Pursuant to Federal Rule of Appe llate Procedure Rule 32(a)(7)(C) and Circuit Rule 32-1, I certify that the attached BRIEF OF INTERVENOR CPV SENTINEL, LLC IN SUPPO RT 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 wi th the 14,000-word limitation. I have relied on Microsoft WORD’s word c ount 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 Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 40 of 41 (40 of 47)STATEMENT OF RELATED CASES Pursuant to Ninth Circuit Rule 28-2.6, Intervenor CPV Se ntinel, LLC is not aware of any related cases curren tly 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 Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-1 Page: 41 of 41 (41 of 47)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 serv ice will be accomplis hed 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 Res pondents United States Environmental Protection Agency (“EPA”), Lisa Jack son, Administrator of EPA, and Jared Blumenfeld, Regional Administrator, Regi on 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 Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-2 Page: 1 of 2 (42 of 47)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 Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-2 Page: 2 of 2 (43 of 47)No. 11-71127

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CALIFORNIA COMMUNITIES AGAINS T TOXICS, an unincorporated association; COMMUNITIES FOR A BETTER ENVIRONMENT Petitioners,

v. UNITED STATES ENVIRONMENTAL PR OTECTION AGENCY, et al., Respondents.

_______________ ON PETITION FOR REVIEW OF AN ORDER OF THE UNITED STATES ENVIRONMEN TAL PROTECTION AGENCY

DECLARATION OF JOSHUA T. BLEDSOE IN SUPPORT OF INTERVENOR CPV SENTINEL, LL C’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 Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-3 Page: 1 of 3 (44 of 47)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 a nd 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 em ail 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, Janua ry 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 Responde nts, informing them of Sentinel’s intent to file a motion for expedited or al 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. Do na indicating that EPA will not oppose Sentinel’s motion. Case: 11-71127 01/27/2012 ID: 8048389 DktEntry: 54-3 Page: 2 of 3 (45 of 47)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, Calif ornia, 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. 

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