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JAMES M. BIRKELUND, Bar No. 206328 

Climate Change Law Foundation 

548 Market St., #11200 

San Francisco, CA 94104 

james@climatechangelaw.org 

Tel: 415-602-6223; Fax: 415-789-4556 

Attorney for Plaintiffs Climate Change Law 

Foundation, Sierra Club, and Association of Irritated Residents 

MAYA GOLDEN-KRASNER, Bar No. 217557 

The Center for Biological Diversity 

P.O. Box 1476 

La Canada Flintridge, CA 91012 

mgoldenkrasner@biologicaldiversity.org 

Tel: 213-215-3729; Fax: 510-844-7150 

Attorney for Plaintiff Center for Biological Diversity 

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

CENTER FOR BIOLOGICAL DIVERSITY, 

ASSOCIATION OF IRRITATED RESIDENTS, 

SIERRA CLUB, and CLIMATE CHANGE 

LAW FOUNDATION, 

 

 Plaintiffs, 

 v. 

UNITED STATES ENVIRONMENTAL 

PROTECTION AGENCY; CATHERINE 

MCCABE, in her official capacity as Acting 

Administrator of the United States Environmental 

Protection Agency; and ALEXIS STRAUSS, in 

her official capacity as Acting Regional 

Administrator of the United States Environmental 

Protection Agency, 

 Defendants. 

Case No: 3:17-cv-720 

COMPLAINT FOR 

DECLARATORY AND 

INJUNCTIVE RELIEF 
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 

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INTRODUCTION 

1. This is an action to compel the Administrator of the United States Environmental 

Protection Agency (“EPA” or “Administrator”) to fulfill mandatory duties under the federal Clean 

Air Act to ensure that the citizens of California have adequate protections against air pollution 

from a natural gas plant in the McKittrick Oil Field in California. 

2. The Chevron USA 7Z Steam Plant (“Natural Gas Plant”) sought and received 

approval for an Authority to Construct permit / Certificate of Conformity (“Permit”) from the San 

Joaquin Valley Air Pollution Control District (“Air District”) pursuant the federal Clean Air Act. 

The Permit allows Chevron to construct eight new 85 MMBtu/hr natural gas fired steam generators 

(hereinafter, the “Project”). Each MMBtu equals one million British Thermal Units (“BTU”), 

which is roughly equivalent to a thousand cubic meters of natural gas. The new generators 

therefore will utilize roughly 85,000 cubic meters of natural gas an hour. 

3. Allowing the Project to move forward will significantly increase harmful air 

pollution that will exacerbate the poor air quality and respiratory illnesses that plague San Joaquin 

Valley communities already unfairly burdened with industrial pollution, and will contribute to 

climate change impacts. 

4. The Permit was issued pursuant to Title V of the Clean Air Act and is a 

modification of the Natural Gas Plant’s existing federal Title V operating permit. As a 

modification of a Title V permit, the Permit was required to be submitted to EPA for a 45-day 

review period before it became final. 42 U.S.C. §§ 7661d(a)(1), (b)(1). EPA did not object to the 

Permit during the 45-day review period. 

5. Therefore, the Association of Irritated Residents (“AIR”), Center for Biological 

Diversity (the “Center”), Sierra Club, and Climate Change Law Foundation (collectively, 

“Plaintiffs”) filed a petition (“Petition”) with EPA on July 7, 2016, requesting that EPA object to 

the Air District’s proposed Permit for the Natural Gas Plant. See 42 U.S.C. § 7661d(b)(2) 

(authorizing such petitions). 

6. Title V of the Clean Air Act establishes a mandatory 60-day deadline for EPA to 

grant or deny a citizen petition for an objection to a Title V permit, modification, or renewal. Id. 
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2 

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7. Although more than 60 days have passed, the EPA Administrator has not acted on 

the Petition. The EPA Administrator has therefore failed to complete her non-discretionary duty 

and is in violation of the Clean Air Act. Plaintiffs seek a declaration stating that the Administrator 

is in violation of the Act and an order compelling the Administrator to grant or deny the Petition. 

JURISDICTION, NOTICE, AND VENUE

8. The instant action arises under the Clean Air Act, 42 U.S.C. §§ 7401 et seq. This 

Court has jurisdiction over this action pursuant to 42 U.S.C. § 7604 and 28 U.S.C. §§ 1331 and 

1361. The relief requested by Plaintiffs is authorized pursuant to 42 U.S.C. § 7604 and 28 U.S.C. 

§§ 2201, 2202, and 1361. 42 U.S.C. § 7604(d) authorizes this Court to award Plaintiffs their costs 

and attorneys’ fees. 

9. In accordance with 42 U.S.C. § 7604(b)(2) and 40 C.F.R. Parts 54.2 and 54.3, 

Plaintiffs notified the Administrator of the violations alleged herein, and of Plaintiffs’ intent to 

initiate the present action. This notice was provided via certified mail by letter dated October 24, 

2016 and addressed to the Administrator. More than 60 days have passed since notice was served, 

and the violation complained of is continuing. 

10. Venue is proper in this Court pursuant to 28 U.S.C. section 1391(e). Defendant 

EPA resides in this judicial district. EPA Region 9, which is responsible for implementation and 

enforcement of the Clean Air Act within California, is headquartered in San Francisco. Climate 

Change Law Foundation, the Center for Biological Diversity, and Sierra Club have offices in this 

judicial district. This civil action is brought against an officer of the United States acting in his or 

her official capacity and a substantial part of the events or omissions giving rise to the claims in 

this case occurred in the Northern District of California. 

PARTIES 

11. Plaintiff Association of Irritated Residents is a California non-profit corporation 

based in Kern County. AIR formed in 2001 to advocate for clean air and environmental justice in 

San Joaquin Valley communities. AIR has several dozen members who reside in Kern, Tulare, 

Kings, Fresno, and Stanislaus Counties. AIR members, through themselves, their families, and 
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 3 

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friends, have direct experience with the many health impacts that arise from the type of pollution 

emissions associated with this Project. 

12. Plaintiff Center for Biological Diversity is a non-profit corporation with offices in 

Oakland, Los Angeles, and elsewhere throughout California and the United States. The Center is 

actively involved in environmental protection issues throughout California and North America and 

has over 47,000 members, including many throughout California, including in the Northern 

District of California and in Kern County. The Center’s mission includes protecting and restoring 

habitat and populations of imperiled species, reducing greenhouse gas pollution to preserve a safe 

climate, and protecting air quality, water quality, and public health. The Center’s members and 

staff include individuals who regularly live, work, recreate and visit Kern County. 

13. Plaintiff Climate Change Law Foundation (“CCLF”) is a California non-profit 

corporation based in San Francisco. CCLF’s core mission is to address climate change and related 

environmental problems through legal advocacy. The organization engages in legal and policy 

matters that include climate change, alternative energy, air quality, and environmental and natural 

resources law. CCLF has members who reside in and regularly use, and intend to continue to use, 

areas in Kern County and surrounding regions that will be affected by the Project and emissions of 

pollution it will generate. 

14. Plaintiff Sierra Club is a national nonprofit organization of approximately 695,000 

members. Sierra Club is dedicated to exploring, enjoying, and protecting the wild places of the 

earth; to practicing and promoting the responsible use of the earth’s ecosystems and resources; to 

educating and encouraging humanity to protect and restore the quality of the natural and human 

environment; and to using all lawful means to carry out these objectives. Sierra Club and its 

members are greatly concerned about the effect of air pollution on human health and the 

environment. Sierra Club has approximately 600-700 members in Kern County. 

15. Plaintiffs are “persons” within the meaning of 42 U.S.C. § 7602(e). As such, 

Plaintiffs may commence a civil action under 42 U.S.C. § 7604(a). 

16. Plaintiffs’ members live, work, recreate and conduct other activities in areas where 

their health and welfare are adversely affected or threatened by air pollution caused by the Project.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 4 

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17. By this action, Plaintiffs seek to protect the health, welfare, and economic interests 

of their members and the general public. Plaintiffs’ members and staff have an interest in their 

health and well-being, and in the health and well-being of others, including the residents of Kern 

County. The acts and omissions of EPA complained of herein have caused and continue to cause 

injury to Plaintiffs and their members by authorizing modifications to the Natural Gas Plant that 

will significantly increase harmful air pollution from the facility and impair or threaten members’ 

and the public’s health and welfare, as well as recreational, aesthetic, and environmental interests. 

18. Plaintiffs’ interests and their members’ interests have been, are being, and will 

continue to be harmed by EPA’s failure to act on the Petition to object to the Permit for the 

Project. Plaintiffs and their members have a substantial interest in ensuring that EPA complies 

with federal law, including the requirements of the Clean Air Act. 

19. The acts and omissions of EPA alleged herein further deprive Petitioners and their 

members of procedural rights and protections to which they are entitled. During the permitting 

process for the Project, Petitioners provided comments critical of the Permit’s conditions. 

Subsequently, Petitioners petitioned EPA to object to the issuance of the Permit. The Clean Air 

Act gives Petitioners a procedural right to a timely decision on their Petition. EPA’s failure to take 

action on the Petition prevents Petitioners and their members from challenging an unfavorable 

EPA decision or from benefiting from a favorable decision on the Petition. 

20. For all the foregoing reasons, the failures complained of herein cause Plaintiffs and 

their members injuries for which they have no adequate remedy at law. Granting the requested 

relief would redress these injuries. 

21. Defendant EPA is the federal agency charged with implementation of the Clean Air 

Act. 

22. Defendant Catherine McCabe is the Acting Administrator of EPA, and is 

responsible for implementation and enforcement of the Clean Air Act. Defendant McCabe is sued 

in her official capacity, and officially resides in Washington, D.C. 

23. Defendant Alexis Strauss is the Acting Regional Administrator of EPA for the 

Pacific Southwest (Region 9), and is responsible for implementation and enforcement of the Clean 
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 5 

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Air Act within California. Defendant Strauss is sued in her official capacity, and officially resides 

in San Francisco, California. 

LEGAL BACKGROUND

24. The Clean Air Act establishes a comprehensive scheme “to protect and enhance the 

quality of the Nation’s air resources so as to promote the public health and welfare and the 

productive capacity of its population.” 42 U.S.C. § 7401(b)(1). To help meet this goal, the 1990 

amendments to the Clean Air Act created the Title V permit program—an operating permit 

program that applies to all major sources of air pollution. See 42 U.S.C. §§ 7661-7661f.

25. Major sources of air pollution must obtain a valid Title V operating permit, which 

records all of the air pollution control requirements that apply to a major source of air pollution. 

Major sources of air pollution cannot legally discharge pollutants into the air unless they have a 

valid Title V operating permit. 42 U.S.C. § 7661a(a), 7661c(a).

26. A significant modification to an existing Title V operating permit must meet the 

requirements that apply to issuance of a Title V operating Permit. See U.S.C. § 7661a(a); 40 

C.F.R. § 70.7(e), (h). 

27. The Clean Air Act provides that the Administrator may approve state programs to 

administer the Title V permitting program with respect to sources within their borders. See 42 

U.S.C. § 7661a(d). The Administrator granted final approval to 34 district Title V programs in 

California, including for the San Joaquin Valley Air Pollution Control District, in 2003. See 68 

Fed. Reg. 65,637 (Nov. 21, 2003). The California Air Resources Board is responsible for 

monitoring the activity of local air districts. 

28. Before a state or local district with an approved Title V permit program can issue a 

Title V permit or significant modification to a Title V permit, the state or district must forward the 

proposed Title V permit to EPA. 42 U.S.C. § 7661d(a)(1); 40 C.F.R. § 70.8(a). EPA then has 45 

days to review the proposed permit. 42 U.S.C. § 7661d(b)(1). 

29. Air District Rule 2520 allows the Air District to issue a “Certificate of Conformity” 

as a means of processing a significant modification to a Title V permit. See San Joaquin Valley Air 
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 6 

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Pollution Control District Rule 2520 §§ 3.7, 5.3.3; see also, San Joaquin Valley Air Pollution 

Control District Rule 2201 § 5.9. 

30. A Certificate of Conformity prompts EPA review of the proposed Title V permit 

changes before construction or modification of the permitted facility and states that procedural 

requirements substantially equivalent to those of 40 C.F.R. sections 70.6 (covering permit 

content); 70.7 (covering permit issuance and revision); and, 70.8 (covering permit review by EPA) 

have been followed. Rule 2520 § 3.7. EPA has 45 days to review a Certificate of Conformity and 

underlying proposed changes to a Title V facility. Id. § 11.3.7. 

31. Pursuant to a Certificate of Conformity, modifications to a Title V permit may 

subsequently be processed as an administrative amendment to the permit without additional EPA 

review or public participation. Id. §§ 3.2, 3.7, 6.4. 

32. EPA must object to the issuance of a permit if EPA finds that the permit does not 

comply with all applicable provisions of the Clean Air Act. 42 U.S.C. § 7661d(b)(1); 40 C.F.R. § 

70.8(c). 

33. If EPA objects to a permit, the permitting authority may not issue the permit unless 

it is revised. 42 U.S.C. § 7661d(b)(3). If the permitting authority has issued a permit prior to 

receipt of an objection by the Administrator, the Administrator shall modify, terminate, or revoke 

such permit. Id. 

34. After EPA’s 45-day review period expires, “any person may petition the 

Administrator within 60 days” to object to the proposed permit. 42 U.S.C. § 7661d(b)(2); 40 

C.F.R. § 70.8(d); see also, San Joaquin Valley Air Pollution Control District Rule 2201 § 5.9.1.7; 

Rule 2520 § 11.3.7. 

35. The Clean Air Act requires that “[t]he Administrator shall grant or deny such 

petition within 60 days after the petition is filed.” 42 U.S.C. § 7661d(b)(2). 

36. If EPA fails to comply with a non-discretionary duty, such as acting on a petition 

within the statutorily mandated timeframe, the Clean Air Act allows any person to bring suit to 

compel EPA to perform its duty. 42 U.S.C. § 7604(a). 

FACTS 
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 7 

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37. The Chevron USA – 7Z Steam Plant in the McKittrick Oil Field is a major 

stationary source of air pollution located in western Kern County, California. 

38. The Natural Gas Plant is subject to an existing Title V permit, issued on April 25, 

2001. 

39. On January 15, 2015, Chevron applied to the Air District for an Authority to 

Construct / Certificate of Conformity to modify the Natural Gas Plant and construct eight new 85 

MMBtu/hr natural gas fired steam generators.

40. The public health implications of the Project are significant. The Project would 

result in the release of harmful air pollution, including significant levels of oxides of nitrogen 

oxides (NOx), carbon monoxide (CO), volatile organic compounds (VOCs), particulate matter 

(PM10) and sulfur oxides (SOx). NOx and VOCs are ozone “precursors” that react in the presence 

of sunlight to create ground-level ozone (or “smog”). 

41. Smog causes severe public health and related effects, which may include chronic 

respiratory illnesses, emergency room visits, premature death, missed school days, medical bills, 

lost wages, and reduced worker productivity. 

Procedural Background 

42. The Air District published notice of its preliminary decision on the Permit on May 

6, 2016 (“Preliminary Decision”), triggering a 30-day comment period on the Preliminary 

Decision. 

43. Petitioners submitted comments objecting to the proposed Permit on grounds that 

the proposed emissions reduction credit for the Project was invalid to the Air District during the 

comment period, on June 9, 2016. 

44. The Air District determined as part of its Preliminary Decision that the proposed 

Project “modification can be classified as a significant Title V modification pursuant to Rule 2520, 

and can be processed with a Certificate of Conformity (COC).” 

45. Processing the modification with a Certificate of Conformity allows Chevron to 

amend its Title V Permit for the Natural Gas Plant administratively under the theory that the 

procedural requirements for the Permit would be “substantially equivalent” to those set forth in 40 
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 8 

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C.F.R §§ 70.7 and 70.8. District Rule 2520 §§ 3.7, 5.3.3., 11.3. The Air District explicitly stated in 

its Preliminary Decision that, “[s]ince the facility has specifically requested that this project be 

processed [with a Certificate of Conformity”], the 45-day EPA comment period will be satisfied 

prior to the issuance of the Authority to Construct.”1

46. EPA did not raise objections to the Permit during the 45-day review period. 

47. On July 7, 2016, Plaintiffs filed a petition requesting that the Administrator object 

to the issuance of the Permit on grounds that the Permit relies on invalid emissions reduction 

credits. The Petition was timely filed within 60 days following the conclusion of EPA’s review 

period. See 42 U.S.C. § 7661d(b)(2). 

48. The Petition was based on objections raised during the public comment period for 

the proposed permit or on grounds that arose subsequent to the public comment period, in 

accordance with 42 U.S.C. § 7661d(b)(2) and 40 C.F.R §§ 70.8(d), 70.7(h). 

49. EPA had 60 days, until September 6, 2016, to grant or deny the Petition. 42 U.S.C. 

§ 7661d(b)(2). As of the date of filing of this complaint, EPA has not yet granted or denied the 

petition. 

50. The Air District issued the Authority to Construct/Certificate of Conformity for the 

Project on October 6, 2016. 

51. By letter dated October 24, 2016, Plaintiffs provided the Administrator with written 

notice of their intent to sue for EPA’s failure to take action on the Petition. The Administrator 

received this notice letter via certified mail on October 31, 2016. More than 60 days have elapsed 

since Plaintiffs gave notice, and EPA remains in violation of the law. 

CLAIM FOR RELIEF 

(Failure to Grant or Deny Petition) 

52. Plaintiffs hereby incorporate all previous paragraphs by reference herein.

 

1 Proposed Decision, http://www.valleyair.org/notices/Docs/2016/05-09-16_(S-1144548)/S1144548.pdf (last accessed February 8, 2017).
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 9 

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53. The Administrator had a mandatory duty to grant or deny the Petition within 60 

days after it was filed. See 42 U.S.C. § 7661d(b)(2). 

/// 

54. It has been more than 60 days since the Administrator received the Petition 

requesting that EPA object to the Permit for the Natural Gas Plant. 

55. Defendants’ failure to timely complete this duty constitutes failure to perform an act

or duty that is not discretionary within the meaning of 42 U.S.C. § 7604(a)(2).

56. Defendants’ failure to perform this nondiscretionary act under the Clean Air Act is 

ongoing. Plaintiffs are informed and believe that the omissions complained of herein will continue 

unless enjoined by order of this Court.

57. Accordingly, Plaintiffs are entitled to an order from this Court declaring that 

Defendants have failed to perform the above-referenced nondiscretionary duty, and directing 

Defendants to perform such duty immediately.

RELIEF REQUESTED 

WHEREFORE, Plaintiffs respectfully request that the Court: 

(A) Declare that Defendants’ failure to act as complained of herein constitutes a failure to 

perform a nondiscretionary duty required by 42 U.S.C. § 7661d(b)(2), and within the meaning of 

42 U.S.C. § 7604(a)(2); 

(B) Issue an order compelling the Administrator to perform her mandatory duty to grant or 

deny the Petition, by an expeditious certain date; 

(C) Retain jurisdiction over this action to ensure compliance with the Court’s orders; 

(D) Award Plaintiffs their reasonable costs of litigation, including attorneys’ fees, pursuant 

to 42 U.S.C. § 7604(d); and

(E) Grant such other relief as the Court deems just and proper.

/// 

/// 

/// 

/// 
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 10 

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DATED: February 13, 2017 Respectfully submitted, 

 

 _/s/_James M. Birkelund______________________ 

 JAMES M. BIRKELUND, Cal. Bar No.206328 

Climate Change Law Foundation 

548 Market St., #11200 

San Francisco, CA 94104 

james@climatechangelaw.org 

Tel: 415-602-6223 

Attorney for Plaintiffs Climate Change Law 

Foundation, Sierra Club, and Association of Irritated 

Residents 

__/s/__Maya Golden-Krasner___________________ 

MAYA GOLDEN-KRASNER, Cal. Bar No. 217557 

The Center for Biological Diversity 

P.O. Box 1476 

La Canada Flintridge, CA 91012 

mgoldenkrasner@biologicaldiversity.org 

Tel: 213-215-3729; Fax: 510-844-7150 

Attorney for Plaintiff Center for Biological Diversity