Free Declaration in Opposition - District Court of California - California

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Joshua Arce, Esq. (State Bar No. 218563) [email protected] BRIGHTLINE DEFENSE PROJECT 240 Golden Gate Avenue, Ste. 102 San Francisco, CA 94102 415-837-0600 Fax 415-837-0660 Martin Homec (State Bar No. 085798) [email protected] P. O. Box 4471 Davis, CA 95617 530-867-1850 Attorneys for Plaintiffs SAN FRANCISCO CHAPTER OF THE A. PHILIP RANDOLPH INSTITUTE, CALIFORNIANS FOR RENEWABLE ENERGY, LYNNE BROWN, REGINA HOLLINS UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO CHAPTER OF THE A. PHILIP RANDOLPH INSTITUTE, CALIFORNIANS FOR RENEWABLE ENERGY, LYNNE BROWN, REGINA HOLLINS, on behalf of themselves, all others similarly situated, and the general public, Plaintiffs, vs. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, STEPHEN JOHNSON, BAY AREA AIR QUALITY MANAGEMENT DISTRICT, CITY AND COUNTY OF SAN FRANCISCO, Defendants. Case No.: C-07-4936-CRB

DECLARATION OF JOSHUA ARCE, ESQ. IN OPPOSITION TO BAAQMD'S MOTION FOR SANCTIONS Date: Friday, April 11, 2008 Time: 10:00 a.m. Place: 450 Golden Gate Avenue Courtroom 8, 19th Floor San Francisco, California

Decl. of Joshua Arce in Opposition to BAAQMD Mot. for Sanctions C-07-4936-CRB

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DECLARATION OF JOSHUA ARCE I, Joshua Arce, being duly sworn, declare: 1. 2. I am the attorney of record for plaintiffs in this action. On October 16, 2007 I wrote to Bay Area Air Quality Management District

("BAAQMD") attorney Alexander Crockett, Esq. because of my understanding that the court would want Mr. Crockett and I to meet and confer about the need for litigation if BAAQMD would stipulate to part of the relief requested. 3. On October 18, 2007 Mr. Crockett responded with his first threat of sanctions

against me and a true and accurate copy of his email is attached as Exhibit A. 4. On October 18, 2007 I calmly responded to Mr. Crockett that I simply wished to

meet and confer and the issues in this case and felt that his tone was inappropriate. I also asked for an explanation of why he thought plaintiffs' complaint was frivolous. A true and accurate copy of that email is attached as Exhibit B. 5. Several times since this exchange, and most notably during a conference call with

all parties and counsel in or around December 2007, Mr. Crockett has threatened to seek sanctions against me personally. 6. I believe in the integrity of the legal arguments contained in plaintiffs' first

amended complaint and BAAQMD's status as a necessary party pursuant to established legal authorities that even defendant City and County of San Francisco have accepted as binding, and have not allowed Mr. Crockett and the BAAQMD's threats of seeking sanctions determine my advocacy of the rights of my clients. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this 21st day of March, 2008, at San Francisco, California.

____________________________________ Joshua Arce, Esq.

-1Decl. of Joshua Arce in Opposition to BAAQMD Mot. for Sanctions C-07-4936-CRB

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EXHIBIT A

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You replied on 10/18/2007 4:19 PM.

Joshua Arce
From: To: Cc: Subject: Attachments: RE: apri v. epa, meet and confer Alexander Crockett [[email protected]] Joshua Arce; Brian Bunger Sent: Thu 10/18/2007 12:57 PM

Brian -- See below. Mr. Arce wants to know if we will roll over and concede to his demands. I plan to call him on Monday to respond (I emailed him back that I was out of the office and would call next week). I'll touch base with you before I do, so maybe you can think about how you'd like us to respond. As you know, my thought is to call him and tell him hell no we're not going to agree to do anything of the sort; and by the way you better withdraw this frivolous complaint, and if you go forward and make us expend public funds to get it dismissed, we will seek to recover the resources we are forced to expend in the form of sanctions. Let's discuss Monday when I'm back. Sandy -----Original Message----From: Joshua Arce [mailto:[email protected]] Sent: Tue 10/16/2007 1:00 PM To: Alexander Crockett Subject: apri v. epa, meet and confer Dear Mr. Crockett, I write regarding our federal suit filed in the case of San Francisco Chapter of the A. Philip Randolph Institute, Lynne Brown, and Regina Hollins v. U.S. EPA, and BAAQMD, U.S. Dist. Ct., Northern Dist., Case No. C-07-4936. We would like to meet and confer regarding the issue of the BAAQMD's issuance of Authority to Construct the San Francisco Electric Reliability Project ("SFERP"), Application 12344. Our complaint requests an order enjoining the BAAQMD's issuance of authority to construct pending the EPA's response to the U.S. Supreme Court's Aprili 2007 ruling in Massachusetts v. EPA. Any resulting changes in EPA's regulation of pollutants under the Clean Air Act will necessarily alter the BAAQMD's analysis of the SFERP. The federal court wants us to meet and confer regarding the possibility that the BAAQMD might stipulate to holding off on such issuance until such time that the EPA has complied with the Massachusetts ruling. Please call me or email at your earliest convenience to discuss. Very truly yours, Joshua Arce Executive Director / Staff Attorney Brightline Defense Project 240 Golden Gate Avenue, Ste. 102 San Francisco, CA 94102 415-837-0600 (phone) 415-837-0660 (fax)

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EXHIBIT B

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You forwarded this message on 10/18/2007 4:48 PM.

Joshua Arce
From: To: Cc: Subject: Attachments: RE: apri v. epa, meet and confer Joshua Arce Alexander Crockett; Brian Bunger Sent: Thu 10/18/2007 4:48 PM

Sandy, We believe that the Massachusetts v. EPA case raises salient issues regarding all new power plants currently awaiting approval throughout the country, including San Francisco's SFERP of course. We're not alone in this belief; our action is duplicated before numerous courts around the country, most notably in suits brought by Sierra Club. If you believe that the complaint is frivolous, please tell us why. I wouldn't call our request "demands." Rather, we ask that BAAQMD pause and wait for the EPA to address the Massachusetts ruling and if you feel that this is unreasonable we want to hear why. I already anticpate that we will be asked by the court to discuss how we tried to work out this issue outside of the courtroom and that is all I'm seeking to do. I don't think the type of tone you've contemplated in your email is necessary, because I look at this issue strictly as a problem that we can solve by trying to reach a mutual understanding. I look forward to our discussion on Monday. Very truly yours, Joshua Arce Executive Director / Staff Attorney Brightline Defense Project 240 Golden Gate Avenue, Ste. 102 San Francisco, CA 94102 415-837-0600 (phone) 415-837-0660 (fax) The information contained in this communication is confidential, is intended only for the use of the recipient named above, and is legally privileged. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication, or any of its contents, is strictly prohibited. If you have received this communication in error, please resend this communication to the sender and delete the original message and any copy of it from your computer system. Thank you.

From: Alexander Crockett [mailto:[email protected]] Sent: Thu 10/18/2007 12:57 PM To: Joshua Arce; Brian Bunger Subject: RE: apri v. epa, meet and confer Brian -- See below. Mr. Arce wants to know if we will roll over and concede to his demands. I plan to call him on Monday to respond (I emailed him back that I was out of the office and would call next week). I'll touch base with you before I do, so maybe you can think about how you'd like us to respond. As you know, my thought is to call him and tell him hell no we're not going to agree to do anything of the sort; and by the way you better withdraw this frivolous complaint, and if you go forward and make us expend public funds to get it

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dismissed, we will seek to recover the resources we are forced to expend in the form of sanctions. Let's discuss Monday when I'm back. Sandy -----Original Message----From: Joshua Arce [mailto:[email protected]] Sent: Tue 10/16/2007 1:00 PM To: Alexander Crockett Subject: apri v. epa, meet and confer Dear Mr. Crockett, I write regarding our federal suit filed in the case of San Francisco Chapter of the A. Philip Randolph Institute, Lynne Brown, and Regina Hollins v. U.S. EPA, and BAAQMD, U.S. Dist. Ct., Northern Dist., Case No. C-07-4936. We would like to meet and confer regarding the issue of the BAAQMD's issuance of Authority to Construct the San Francisco Electric Reliability Project ("SFERP"), Application 12344. Our complaint requests an order enjoining the BAAQMD's issuance of authority to construct pending the EPA's response to the U.S. Supreme Court's Aprili 2007 ruling in Massachusetts v. EPA. Any resulting changes in EPA's regulation of pollutants under the Clean Air Act will necessarily alter the BAAQMD's analysis of the SFERP. The federal court wants us to meet and confer regarding the possibility that the BAAQMD might stipulate to holding off on such issuance until such time that the EPA has complied with the Massachusetts ruling. Please call me or email at your earliest convenience to discuss. Very truly yours, Joshua Arce Executive Director / Staff Attorney Brightline Defense Project 240 Golden Gate Avenue, Ste. 102 San Francisco, CA 94102 415-837-0600 (phone) 415-837-0660 (fax)

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CERTIFICATE OF SERVICE On March 21, 2008, a true and correct copy of the foregoing DECLARATION OF JOSHUA ARCE, ESQ. IN OPPOSITION TO BAAQMD'S MOTION FOR SANCTIONS was served electronically via the Court's e-filing system to Counsel of Record. BRIGHTLINE DEFENSE PROJECT

____________________________________ Joshua Arce, Esq.

Decl. of Joshua Arce in Opposition to BAAQMD Mot. for Sanctions C-07-4936-CRB