Free Motion to Dismiss - District Court of California - California

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DENNIS J. HERRERA, State Bar #139669 City Attorney OWEN J. CLEMENTS, State Bar #141805 Chief of Special Litigation THERESA L. MUELLER, State Bar #172681 Chief Energy and Telecommunications Deputy WILLIAM K. SANDERS, State Bar #154156 Deputy City Attorney City Hall Room 234 1 Dr. Canton B. Goodlett Place San Francisco, California 94102-4682 Telephone: (415) 554-6771 Facsimile: (415) 554-4757 E-Mail: [email protected] Attorneys for Defendant CITY AND COUNTY OF SAN FRANCISCO UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION SAN FRANCISCO CHAPTER OF THE A. PHILLIP RANDOLPH INSTITUTE, CALIFORNIANS FOR RENEWABLE ENERGY, LYNNE BROWN, REGINA HOLLINS, on behalf of themselves and others similarly situated and the general public Plaintiffs, vs. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, STEPHEN JOHNSON, BAY AREA AIR QUALITY MANAGEMENT DISTRICT, MARK ROSS, CITY AND COUNTY OF SAN FRANCISCO, Defendants. Hearing Date: April 11, 2008 Time: 10:00 a.m. Place: Courtroom 8, 19th Floor Case No. C-07-4936-CRB NOTICE OF MOTION AND MOTION OF DEFENDANT THE CITY AND COUNTY OF SAN FRANCISCO TO DISMISS THE COMPLAINT; MEMORANDUM OF POINTS AND AIXEHORITIES IN SUPPORT THEREOF

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1 2 TABLE OF AUTHORITIES NOTICE OF MOTION 4

TABLE OF CONTENTS ii 1 1 1 4 4 5 6 7 8 8 8 9 9 10 10

MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND SUMMARY OF ARGUMENT STATEMENT OF FACTS A. B. The San Francisco Action Plan and the Development of the SFERP The City's Approval of the SFERP Massachusetts v. Environmental Protection Agency

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II.

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V. III. IV.

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LEGAL STANDARD ARGUMENT A. This Court Should Dismiss Plaintiffs' Federal Claims for Lack of Subject Matter Jurisdiction 1. 2. 3. B. Plaintiffs' claims against the City based on Massachusetts are notripeforreview Plaintiffs' procedural due process claim is not ripe for review Plaintiffs have not alleged a sufficient property interest

The Court Should Dismiss Plaintiffs' Federal Claims Against the City for Failure To State a Claim 1. 2. 3. Plaintiffs cannot obtain injunctive relief against the City under 28 U.S.C. § 1361 or the Administrative Procedure Act

Plaintiff cannot obtain injunctive relief against the city based on the EPA's purported failure to "comply" with Massachusetts 11 Plaintiffs have failed to properly plead a procedural due process claim 12 12

C. D. E.

The Court Should Decline Supplemental Jurisdiction

The Court Should Dismiss Plaintiffs' Nuisance Claim Against the City on Justiciability and Ripeness Grounds 13 This Court Should Dismiss Plaintiffs' State Law Claims Against the City for Failure to State a Claim 1. 2. Plaintiffs have failed to state a claim for a public nuisance Plaintiffs have failed to state a claim for a writ of mandamus 15 15 16 18

CONCLUSION

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1 2 3 Federal Cases Abbott Laboratories v. Gardner 387U.S. 136(1967) Baker v. Carr 369 U.S. 186(1962) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Beverly Hills Federal Savings and Loan Association v. Webb 406 F.2d 1275 (9th Cir. 1969) Branch v. Tunnel 14 F.3d 449 (9th Cir. 1994) Carson Harbor Village, Ltd. v. Unocal Corp. 270 F.3d 863 (9th Cir. 2001) Clark v. Washington 366F.2d678(9thCir. 1966) Conley v. Gibson 355 U.S. 41(1957) Connecticut v. American Electric Power Co. 406 F. Supp 2d 265 (S.D.N.Y. 2005) E.E.O.C. v Peabody Western Co. 400 F.3d 774 (9th Cir. 2005) Emrich v. Touche Ross & Co. 846 F.2d 1190 (9th Cir. 1988) Executive Software North America, Inc. v. United States District Court 24F.3d 1545 (9th Cir. 1994) Herman Family Revocable Trust v. Teddy Bear 254 F.3d 802 (9th Cir. 2001) Hunter v. Underwood 362 F.3d 468 (8th Cir. 2004) Jarrett v. Resor 426 F.2d 213(9th Cir. 1970) Lee i City of Los Angeles 250 F.3d 668(9th Or. 2001)

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Massachusetts v. Environmental Protection Agency 127 S. Ct. 1438 (2007) Massachusetts v. Environmental Protection Agency 249 Fed. App'x. 829 (D.C. Cir. 2007) National Park Hospitality Association v. Department of Interior 538 U.S. 803 (2003) National Wildlife Federation v. Espy 45 F.3d 1337(9th Cir. 1995) Natural Resources Defense Council v. Train 545 F.2d 320 (2d Cir. 1976) People of State of Caflfornia v. General Motors Corp. 2007 WE 2726871 (N.D. Cal., Sept. 17, 2007) Plan For Arcadia, Inc. v. Anita Associates 501 F.2d 390(9th Cir. 1974) Portman v. County of Santa Clara 995 F.2d 898 (9th Cir. 1993) Powers v. Ohio 499U.S.400(j1991) Taliferro v. Darby Township Zoning Board 458F.3d 181 (3dCir. 2006) Thornhill Publishing Co. v. General Telephone & Electronics. Corp. 594 F.2d 730 (9th Cir. 1979) United States v. James Daniel Good Real Property 510 U.S. 43 (1993) United States v. Weber 451 F.3d 552 (9th Cir. 2006) Verizon California Inc. v. Peevey 413 F.3d 1069 (9th Cir. 2005) Warren v. Fox Family Worldwide, Inc. 328 F.3d 1136 (9th Cir. 2003) White v. Lee 227 F.3d 1214(9th Cir. 2000)

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State Cases 2 Alliance for a Better Downtown Millbrae v. Wade 108 Cal. App. 4th 123 (2003) Excelsior College v. Caflfornia Board of Registered Nursing 136 Cal. App. 4th 1218 (2006) People cx reL Gallo v. A cuna 14 Cal. 4th 1090 (1997) State Board of Education v. Flonig 13 Cal. App. 4th 720 (1993) 9 10 Federal Statutes 12 13 14 15 16 17 18 19 20 28 United Section Section Section Section Section Section States Code 1361 1367(a) 1367(c) 1367(c)(1) L367(c)(1), (3) 1367(c)(3) 2, 10 1, 13 1, 13 13 13 13 5 United States Code Section 701(b)(1) Section 706(1) Unnamed Physician v. Board of Trustees of Saint Agnes 93 Cal. App. 4th 607 (2001)

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42 United States Code Section 1983 Section 7607(b) Federal Rule of Civil Procedure Section 12(b)(1) Section 12(b)(6) Section 19(b)

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State Statutes & Codes
California Section Section Section Section Civil Code 3479 3480 3482 3493
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California Code of Civil Procedure Section 1085(a) California Public Resources Code Section 25500 San Francisco Statutes, Codes & Ordinances

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San Francisco Charter Section4.112 San Francisco Environment Code Section 101 Section 104

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NOTICE OF MOTION TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that, on April 11, 2008, at 10:00 a.m. or as soon thereafter as counsel may be heard in the above-entitled Court, located at 450 Golden Gate Avenue, San Francisco, California 94102. defendant the City and County of San Francisco (the "City") will move this Court, before the Honorable Charles R. Breyer, United States District Judge, for an order, pursuant to: (i) Federal Rule of Civil Procedure 12(b)(1), dismissing certain of plaintiffs' claims on the ground that the Court lacks subject matter jurisdiction over them; and/or (ii) Federal Rule of Civil Procedure 12(b)(6), dismissing all of plaintiffs' claims on the ground that plaintiffs have failed to state a claim therein; (iii) 28 U.S.C. § 1367(a), dismissing plaintiffs' state law claims because the Court does not have subject matter jurisdiction over plaintiffs' federal claims; andlor (iv) 28 U.S.C.

§ 1367(c), declining to exercise supplemental jurisdiction over plaintiffs' state law claims. The
motion is based upon this notice of motion, the attached memorandum of points and authorities, the request for judicial notices submitted herewith, and upon such other matters as may be presented to the Court at the time of the hearing.

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17 18 19 20 21 22 23 24 25 26 27 28 I.

MEMORANDUM OF POINTS AN]) AUTHORITIES
INTRODUCTION AND SUMMARY OF ARGUMENT For a number of years now, the City has worked diligently with community members to replace old, inefficient and dirty electric generating plants located in the southeast part of San Francisco with a modem, clean facility powered by three combustion turbine ("CT") generators (the San Francisco Electric Reliability Project ("SFERP")). In order to do so, the City had to obtain a number of permits, one of which was from defendant Bay Area Air Quality Management District ("BAAQMD"). After a lengthy process, the City has obtained most of those permits, including a Final Determination of Compliance from BAAQMD. The only regulatory permit still required is an Authority to Construct ("ATC") from BAAQMD. Plaintiffs San Francisco Chapter of the A. Phillip Randolph Institute, et a!. are among a small number of entities, groups and individuals that oppose the SFERP. Because all of their legal efforts to challenge the City's permits directly, either administratively or through the state courts, have been n:\energy\as2008\0300565\00469675doc S.F. Motion to Dismiss 1
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exhausted, plaintiffs have filed this federal court complaint seeking to enjoin BAAQMD from issuing the ATC, and the City from constructing the SFERP, for reasons unrelated to the City's compliance with existing federal and state air quality control standards. In fact, plaintiffs do not allege that the SFERP will violate any existing federal or state air quality laws. Instead, plaintiffs allege that in Massachusetts v. Environmental Protection Agency the Supreme Court recently ordered defendants United States Environmental Protection Agency and Stephen L. Johnson (hereinafter "EPA") to reassess their prior determination that the EPA did not have the authority under the Clean Air Act to regulate greenhouse gas emissions from new motor vehicles. (Amended Complaint at 9191 9 1-94.) Plaintiffs further allege that, once the EPA makes the required endangerment finding, the EPA will then regulate greenhouse gas emissions from both automobiles and stationary sources. (Amended Complaint at ¶ 95.) They claim that this Court, therefore, should enjoin BAAQMD from issuing the ATC, and the City from constructing the SFERP, until the EPA has issued its new regulations. (Amended Complaint at p. 24 9191 3-4.) Although the City shares plaintiffs' desire to promote aggressive greenhouse gas regulation, such desire provides no basis for this complaint. As discussed below, this Court should dismiss all of plaintiffs' claims because they are deficient in one or more ways. As set forth in the EPA's motion to dismiss filed on February 15, 2008, which the City adopts by this reference, this Court should dismiss plaintiffs' first and second claims for relief against the EPA for lack of subject matter jurisdiction and failure to state a claim. In addition, to the extent plaintiffs are seeking to require the EPA to regulate greenhouse gas emissions from stationary sources, based on its finding on remand from the Supreme Court that greenhouse gases are air pollutants that will endanger public health, that claim is not ripe for review. It must first await the EPA's order following the remand. Finally, neither the Administrative Procedure Act nor 28 U.S.C.

§ 1361, on which these claims are pleaded, provide a legal basis for plaintiffs to obtain any relief
against the City. That the City might be an "indispensable" party to the plaintiffs' federal claims, does not mean that plaintiffs can obtain injunctive relief against the City based on those claims. In their third claim for relief, plaintiffs claim that the manner in which the City will "build and operate its power plants constitutes a [publici nuisance." (Amended Complaint at ¶ 115.) Plaintiffs n:\energy\as2008\O3OO565\OO49675.doc S.F. Motion to Dismiss 2
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allege that the SFERP is "injurious to plaintiffs' health and to the health of the public in general, and interfere[s] with plaintiffs' comfortable enjoyment of life and property." (Amended Complaint at 110.) Plaintiffs allege that they will be "specially injured" by the City's proposed power plant. (Amended Complaint at

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¶ 113.)

This Court should dismiss that claim for a number of reasons. First, as with plaintiffs' first and second claims for relief, such a claim is not ripe to the extent plaintiffs are asking the EPA to regulate greenhouse gas emissions from stationary sources. Second, this Court does not have subject matter jurisdiction over this claim because, as two other district courts have held, a public nuisance claim based on greenhouse gas emissions raises political questions that are non-justiciable. Third, if this Court dismisses plaintiffs' federal claims, as all of the defendants are asking the Court to do. the Court: (i) will not have supplemental jurisdiction over plaintiffs' state law claims if the dismissal is for lack of subject matter jurisdiction; or (ii) should decline to exercise supplemental jurisdiction if the dismissal is for failure to state a claim. Finally, plaintiffs have failed to state a claim upon which relief can be granted. Plaintiffs' allegations that ozone emissions from the SFERP would be a public nuisance fail to meet the objective standard this Court must apply to such a claim. Indeed, two government agencies have determined the SFERP will not make significant contributions to ozone levels. En their fourth claim for relief, plaintiffs allege that the City deprived them of their property without due process of law. (Amended Complaint at ¶91 124-33.) Plaintiffs claim that they have been deprived of their right to procedural due process because City officials purportedly: (i) made certain "misrepresentations" about the SFERP; and (ii) "failed to disclose facts that would have discouraged public and legislative support" for the SFERP. (Amended Complaint at ¶91 127-33.) Plaintiffs claim that by so doing the City has diminished the value of their property. (Amended Complaint at ¶ 124.) This Court should dismiss plaintiffs' due process claim for two reasons. First, this Court does not have subject matterjurisdiction of this claim because plaintiffs have failed to allege that they own any property in the vicinity of the SFERP. Second, plaintiffs have failed to state a claim upon which relief can be granted because the City gave plaintiffs ample notice and an opportunity to be heard, which is what the Due Process Clause requires.
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In the fifth claim for relief, plaintiffs seeks a writ of mandamus under California law based on the City's purported failure to review the SFERP in light of the City's precautionary principle. (Amended Complaint at 138-43.) This Court should dismiss this claim for failure to state a claim because: (i) the evidence before this Court is that the City fully complied with the precautionary principle; and (ii) the application of the precautionary principle to the SFERP was an exercise of discretion. Therefore, a writ of mandamus would not an appropriate remedy. II. STATEMENT OF FACTS A. The San Francisco Action Plan and the Development of the SFERP
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For decades the City's electric reliability has depended on two old, polluting power plants

the Hunters Point Power Plant (owned by Pacific Gas and Electric Co.) and the Potrero Power Plant (owned by Mirant Potrero, LLC). (See Amended Complaint at JfJ 48-50.) In November 2004, the California Independent System Operator ("CAISO") adopted the San 1 Francisco Action Plan, which detailed the need for the SFERP, another City owned CT plant to be located near San Francisco International Airport, and a number of transmission projects to replace these two existing plants. (Defendant's Request for Judicial Notice ("RJN") at Exhibit A.) On October 3, 2006, the California Energy Commission ("CEC") approved the City's 2 Application for Certification ("AFC") to construct and operate the SFERP. (CEC Order, and excerpts from CEC Final Decision on the SFERP related to air quality) (RJN Exhibit B).) In approving the AFC. the CEC found that the SFERP will "provide a degree of economic benefits and electricity reliability to the local area." (Id. at p. 1.) The CEC further found that the conditions of certification imposed by the CEC would: (i) "ensure that the project will be designed, sited, and operated in conformity with applicable local, regional, state, and federal laws, ordinances, regulations, and standards, including applicable public health and safety standards, and air and water quality

The CAISO manages the flow of electricity across the high-voltage, long-distance power lines that make up California's power grid. (See www.caiso.comJlc28/lc28acdd2al7O.pdf.) The CEC is the state's primary energy policy and planning agency. (See www.energy.ca. gov/commissionlindex.html.) The CEC has the exclusive "power to certify all sites and related facilities in the state" used to supply electric power. Cal. Pub. Res. Code § 25500.
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standards;" and (ii) "assure that the project will neither result in, nor contribute substantially to, any
significant direct, indirect, or cumulative adverse environmental impacts." (Id. at pp. 1-2.) Air quality concerns were an important part of the CEC certification process. The CEC required the City to obtain a Determination of Compliance from BAAQMD. On November 22, 2005, BAAQMD issued a Final Determination of Compliance ("FDOC"), which was then revised and reissued on January 19, 2006. (RJN Exhibit C.) In the FDOC, BAAQMD found that the SFERP would comply with all applicable federal and state air quality laws, provided that the City complied with the conditions of compliance contained therein. (Id. at p. 1.) The CEC then included those conditions in the CEC Order and Final Decision. (See RJN Exhibit B at pp. 112-36.) Before the City can begin construction of the SFERP, BAAQMD must issue the City the ATC. (See Amended Complaint at ¶ 72.) Under BAAQMD Rules and Regulations, BAAQMD must issue the ATC if the CEC Order contains all of the conditions required by BAAQMD. (BAAQMD Regulation 2-3-301 and 2-3-405 (RJN Exhibit D).) Plaintiffs do not claim that the CEC Order and Final Decision are not complete in this regard. B. The City's Approval of the SFERP

The San Francisco Public Utilities Commission ("SFPUC") is established by the San Francisco Charter. (S.F. Charter

§ 4.112)

(RJN Exhibit E).) The SFPUC has "charge of the

construction, management, supervision, maintenance, extension, operation, use and control of all water and energy supplies and utilities of the City as well as the real, personal and financial assets" used for these purposes. (Id.) On October 23, 2007 and October 31, 2007, the SFPUC held public meetings to consider a resolution authorizing the General Manager of the SFPUC to complete negotiations and execute certain agreements necessary to construct the SFERP. (See SFPIJC Minutes for Meetings on October 23. 2007) (RJN Exhibit F) and October 30. 2007 (RJN Exhibit G.) During the meeting on October 3 1, the SFPUC approved the resolution. (SFPUC Resolution No. 07-0188) (RJN Exhibit H).) The resolution states that the City's Board of Supervisors would have to approve the SFERP. (Id.) During the meeting on October 23l a representative from BAAQMD made certain statements about the existing power plants in the City that plaintiffs claim show that the SFPUC had been
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misleading the public about the SFERP. (See RJN Exhibit F at p. 7; Amended Complaint at ¶j[ 12829.) Nonetheless, plaintiffs and their supporters were free to attend that meeting, as well as the October 3l meeting. During those meetings, plaintiffs and their supporters could voice their concerns about the SFERP and challenge the accuracy of any statements City employees had made to the SFPUC about the SFERP. At least one of the plaintiffs, and their attorney, joined other project opponents in doing just that. (See RJN Exhibit F at p. 9, RJN Exhibit G at pp. 3-4.) On October 30, 2007, the Board of Supervisors approved a resolution that, among other things, urged the SFPUC to move forward with the SFERP in an expeditious manner so that the necessary documents could be presented to the Board of Supervisors for its approval. (Board of Supervisors Resolution No. 617-07) (RJN Exhibit I).) The Board of Supervisors held public hearings before approving this resolution. (See Minutes of Board of Supervisors Meeting on October 31, 2007) (RJN Exhibit J at p. 14).) During the same meeting, Supervisor Alioto-Pier requested a hearing on alternatives to the SFERP. (See RJN Exhibit J at p. 21.) On January 28, 2008, the Board of Supervisors held that hearing. (Minutes of San Francisco Board of Supervisors Land Use Committee Meeting on January 28, 2008 (RJN Exhibit K).) Thus, the Board of Supervisors also gave the plaintiffs the opportunity to speak out against the SFERP. C. Massachusetts v. Environmental Protection Agency

In Massachusetts v. Environmental Protection Agency, 127 S. Ct. 1438 (2007), petitioners sought review of an EPA order denying a petition asking the EPA to open a rulemaking to regulate greenhouse gas emissions from new motor vehicles under the Clean Air Act. The Court found that the EPA had a duty under the Clean Air Act to make a "judgment.. whether an air pollutant causes
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or contributes to... air pollution which may reasonably be anticipated to endanger public health or welfare." Id. (internal quotation marks and alterations omitted). Because the EPA offered no "reasoned explanation for its refusal" to act, the Court remanded the matter to the D.C. Circuit for "further proceedings consistent with this opinion." Id. at 1463. The Court found, however, that it did not need to address, nor did its decision actually address, "the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPA's actions in the event that it makes such a finding." Id.
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The D. C. Circuit then remanded the proceeding to the EPA for "further proceedings consistent with the Supreme Court's opinion." Massachusetts v. Environmental Protection Agency, 249 Fed. App'x. 829, 829 (D.C. Cir. 2007). III. LEGAL STANDARD The City moves to dismiss certain claims for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Those grounds include lack of standing and ripeness. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (standing); United States v. Weber, 451 F.3d 552, 556 (9th Cir. 2006) (ripeness). Plaintiffs bear the burden of proving that this Court has jurisdiction to decide their claims. Thornhill Publishing Co. v. General Telephone & Electronics. Corp., 594 F.2d 730, 733 (9th Cir. 1979). To survive a Rule 12(b)(1) motion to dismiss, plaintiffs must allege "facts demonstrating the appropriateness of invoking judicial resolution of the dispute." Verizon Calfornia Inc. v. Peevey, 413 F.3d 1069, 1084 (9th Cir. 2005) (internal quotation marks omitted) (ripeness); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1140 (9th Cir. 2003) (similar holding for standing). The City also moves to dismiss certain claims in the complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion under Rule 12(b)(6) should be granted where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). While the Court should accept the well-pleaded allegations in the complaint as true in deciding a motion to dismiss, the Court need not accept as true conclusory allegations of law. See Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001). The Court may consider documents submitted by the defendants if such documents are referred to in the complaint. See Branch v. Tunnel, 14 F.3d 449, 453-54 (9th Cir. 1994). This Court may also consider documents that are matters of public record subject to judicial notice. See Em rich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir. 1988).

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IV.

ARGUMENT A. This Court Should Dismiss Plaintiffs' Federal Claims for Lack of Subject Matter Jurisdiction 1. Plaintiffs' claims against the City based on Massachusetts are not ripe for review

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In the first and second claims for relief alleging violations of federal law, plaintiffs seek to have this Court order the EPA to make an endangerment finding for greenhouse gas emissions, and to enjoin the City from constructing the City project until the EPA takes such action. (Amended Complaint at pp. 24,

fi 2, 4.)

The ripeness doctrine stems from the Article III case and controversy requirement. National Park Hospitality Association v. Department of Interior, 538 U.S. 803, 808 (2003). "[llnjunctive and declaratory judgment remedies are discretionary, and courts traditionally have been reluctant to apply them to administrative determinations unless these arise in the context of a controversy `ripe' for judicial resolution." Abbott Laboratories v. Gardner, 387 U.S. 136, 148 (1967). A challenge to administrative agency action is ripe only if: (i) the question presented is "a purely legal one;" (ii) the challenged action constitutes "final agency action;" and (iii) "further factual development would [not] significantly advance [the court's] ability to deal with the legal issues presented." National Park Izlospitalitv Association, 538 U.S. at 812 (internal quotation marks omitted). The application of those criteria to the facts at bar require this Court to find that plaintiffs' claims based on Massachusetts are not ripe for review. Until there is aflnal determination from the EPA on the endangerment issue, following the remand from the Supreme Court and the D.C. Circuit (at least as it relates to motor vehicle emissions), there is no basis for this Court to require the EPA to take any action with respect to other sources of air pollution. It is inappropriate for any court to interfere with the EPA's rulemaking process at this juncture. Only after the EPA issues a final determination on these issues will further judicial review be appropriate. 3 In any event, as the EPA points out, any future claim against the EPA challenging the EPA's failure to adopt national standards for greenhouse gas emissions must be brought in the District Court for the District of Columbia. (See Memorandum in Support of EPA's Motion to Dismiss, at 7 (citing 42 U.S.C. § 7607(b).)
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Furthermore, even if this Court were to somehow require the EPA to make an endangerment finding for all greenhouse gas emissions, that would not mean that the EPA will necessarily establish air quality standards for greenhouse gas emissions that will impact the construction of the SFERP. Those matters would have to be taken up by the EPA in a separate proceeding. See Natural Resources Defense Council v. Train, 545 F.2d 320, 328 (2d Cir. 1976) (EPA has mandatory duty to list a substance as an air pollutant once it makes an endangerment finding). Further, as the Supreme Court noted, the "EPA no doubt has significant latitude as to the manner, timing, content, and coordination of its regulations with.
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other agencies." Massachusetts, 127 5. Ct. at 1462. This

Court simply cannot take any action to prohibit the City from constructing the SFERP based on the possibility that at some unknown time in the future the EPA could make an endangerment finding for greenhouse gas emission from motor vehicles andlor from all sources and that the EPA could then regulate greenhouse gas emissions in a manner that could effect the SFERP. See Plan For Arcadia, Inc. v. Anita Associates, 501 F.2d 390, 392 (9th Cir. 1974) (court cannot order the EPA to promulgate '). 1 "any particular regulation or set of regulations For these reasons, this Court should dismiss plaintiffs' first, second and third claims for relief for lack of subject matter jurisdiction. 2. Plaintiffs' procedural due process claim is not ripe for review

The Fourteenth Amendment to the United States Constitution protects individuals against the deprivation of liberty or property by the government without due process of law. Portman v Count of Santa Clara, 995 F.2d 898, 904(9th Cir. 1993). A procedural due process claim under 42 U.S.C.

§ 1983 must allege three things: "(1) a liberty or property interest protected by the Constitution; (2) a
deprivation of the interest by the government; (3) lack of process." Id. The SFPUC's approval of the SFERP did not mean that the project would go forward. It still needs the approval of the City's Board of Supervisors. Until then, plaintiffs' procedural due process claim is not ripe for review. 3. Plaintiffs have not alleged a sufficient property interest

Plaintiffs allege that the value of their property will be diminished if the City is allowed to construct the SFERP. (Amended Complaint at ¶ 124.) In so doing, they rely on the following vague allegations of certain "property" interests: (i) plaintiff A. Philip Randolph Institute ("APRI") represents certain unnamed "constituents" who purportedly live nearby the proposed site of the n:\energy\as200S\0300565\00469675.doc S.F. Motion to Dismiss 9

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SFERP; (ii) certain unnamed "workers" who are purportedly "members" of APRI will "work across the street" from the proposed site; (iii) plaintiff Lynne Brown is a resident of Bayview Hunters Point; and (iv) plaintiff Regina Nollins is a resident of the Potrero neighborhood of San Francisco where the SFERP will be located. (Amended Complaint at ¶91 37, 39-40.) Plaintiffs have failed to allege that any one of them owns any property in the vicinity of the SFERP. As a result, plaintiffs do not have standing to assert a procedural due process claim based on allegations that certain government action will diminish the value of their properties. See Taliferro v. Darby Township Zoning Board, 458 F.3d 181, 190 (3d Cir. 2006) (only present property owners could sufficiently allege a "constitutionally cognizable injury" as required to establish standing). Nor can these plaintiffs assert an injury on behalf of third parties. To establish such third party standing, plaintiffs must show that: (i) they have suffered an "injury in fact" giving them a "sufficiently concrete interest" in the dispute; (ii) they have a "close relation" to the third parties; and (iii) there exists "some hindrance" to the third parties' ability to "protect" their own interests. Powers v. Ohio, 499 U.S. 400,411(1991) (internal quotation marks omitted). Plaintiffs' efforts in this regard fail because they have not shown that they suffered an injury in fact, nor could they show that persons owning property near the SFERP could not seek to protect their interests. For these reasons, this Court should dismiss plaintiffs' third claim for relief for lack of subject matter jurisdiction. B. The Court Should Dismiss Plaintiffs' Federal Claims Against the City for Failure To State a Claim 1. Plaintiffs cannot obtain injunctive relief against the City under 28 U.S.C. § 1361 or the Administrative Procedure Act

Plaintiffs' first claim for relief is pleaded under 28 U.S.C.

§ 1361 and their second claim for

relief is pleaded under the Administrative Procedure Act ("APA"). Neither of these provisions can be used to obtain relief against the City. Section 1361 grants the district courts "original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C.

§ 1361. This section only establishes federal court

jurisdiction to issue such relief against the United States. It does not somehow grant federal courts
S.F. Motion to Dismiss Case No. C-07-4936-CRB

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Cir. 1966) ("federal courts are without power to issue writs of mandamus to direct state courts or their judicial officers in the performance of their duties, including disbarment proceedings"). In any event, a writ would not be an appropriate means to enjoin the City from constructing the SFERP based on the allegations in the Amended Complaint. Mandamus is an "extraordinary" remedy and "is appropriate only when the plaintiff's claim is clear and certain and the duty of the officer is ministerial and so plainly prescribed as to be free from doubt." Jarrett v. Resor, 426 F.2d 213, 216 (9th Cir. 1970) (emphasis added). Here, there are no allegations that the City somehow has a mandatory duty to halt its plans to construct the SFERP while the EPA: (i) considers whether to make an endangerment finding with respect to greenhouse gas emissions for both mobile and stationary sources; and (ii) determines whether and how to regulate greenhouse gas emissions from both mobile and stationary sources. The City had a mandatory duty to comply with existing laws when siting the SFERP, and there is no claim here that the City has not done so. Plaintiffs' claim against the City under the APA fails for similar reasons. Plaintiffs allege that they are seeking to compel "agency action unlawfully withheld as well as unreasonably delayed." (Amended Complaint at ¶ 102, citing 5 U.S.C.

§ 706(1).) The APA, however, defines "agency" as § 701(b)(1). "The APA does not

"each authority of the Government of the United States." 5 U.S.C.

grant federal courts jurisdiction to review actions of state or municipal agencies." Hunter v. Underwood, 362 F.3d 468,477(8th Cir. 2004). For these reasons, this Court should dismiss plaintiffs' first and second claims for relief against the City for failure to state a claim. 2. Plaintiff cannot obtain injunctive relief against the city based on the EPA's purported failure to "comply" with Massachusetts

In the first and second claims for relief, plaintiffs refer to the City as "indispensable" party. (Amended Complaint at ¶1 99, 107.) They assert, therefore, that these claims are a basis for this Court to enjoin the City from constructing the SFERP "until such time as the EPA defendants have complied with the Supreme Court's demand." (Amended Complaint at p. 24,

¶ 4.)

The rules concerning indispensable parties, however, are used to determine whether a complaint should be dismissed because a necessary party cannot be joined. Fed. R. Civ. P. 19(b).
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The City can be and has been joined. Rule 19(b) cannot be used offensively as a legal ground for obtaining injunctive relief against the purportedly indispensable party. See E.E.O.C. v Peabody Western Co., 400 F.3d 774, 783-84 (9th Cir. 2005) (emphasis added) (an indispensable party is one "against which relief has not formally been sought, but is so situated that the effectiveness of the relief for the present parties will be impaired if not joined"); Beverly Hills Federal Savings and Loan Association v. Webb, 406 F.2d 1275, 1279 (9th Cir. 1969) (joinder is permissible "even though no present party asserts a grievance against such person"). In neither the first or second claims for relief have plaintiffs alleged any legal basis for injunctive relief against the City based on the EPA's failure to regulate greenhouse gas emissions as purportedly required by the Supreme Court. For this reason, once the Court dismisses the first and second claims as to the EPA, this Court should also dismiss those claims against the City. 3. Plaintiffs have failed to properly plead a procedural due process claim

In their fourth claim for relief, plaintiffs seem to claim that the City made a decision to approve the SFERP based on either misinformation or lack of information. The SFPUC and the Board of Supervisors held numerous public meetings on the SFERP. During those meetings, the City gave plaintiffs the opportunity to be heard. This satisfies the requirements of the due process clause. See United States v. James Daniel Good Real Property, 510 U.S. 43,48 (1993) ("Our precedents establish the general rule that individuals must receive notice and an opportunity to be heard before the Government deprives them of property.") C. The Court Should Decline Supplemental Jurisdiction

Plaintiffs' third and fifth claims for relief are based on California law. This Court has supplemental jurisdiction over plaintiffs' state law claims only to the extent they "are so related to claims in the action within such original jurisdiction that they form part of the same case or The City acknowledges that it could be joined as a party to the plaintiffs' claims against the EPA to the extent that the City's joinder is necessary for plaintiffs to obtain "complete relief." National Wildlife Federation v. Espy, 45 F.3d 1337, 1345 (9th Cir. 1995) (internal quotation marks omitted). If this Court grants the EPA's motion to dismiss these claims, however, the City's presence would not be necessary because this Court would have determined that the plaintiffs are not entitled to any relief against the only party that could be found to have violated these federal statutes.
S.F. Motion to Dismiss Case No. C-07-4936-CRB
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controversy." 28 U.S.C.

1367(a). The parties have moved to dismiss all of plaintiffs' federal

claims for lack of subject matter jurisdiction. If this Cowt grants those motions, the dismiss plaintiffs' supplemental claims under Bear, 254 F.3d 802, 805 (9th Cir. 2001).

Court must

1367(a). Herman Family Revocable Trust v. Teddy

Even if any of plaintiffs' claims survive the jurisdictional challenges, federal law grants the court discretion to refuse to exercise jurisdiction for a number of reasons, including that: (i) "the claim raises a novel or complex issue of state law" and (ii) "the district court has dismissed all claims over which it has original jurisdiction." Id. 28 U.S.C.

§ 1367(c)(1), (3). A court's decision to

exercise that discretion should be "informed by whether remanding the pendent state claims comports with the underlying objective of most sensibly accommodating the values of economy, convenience, fairness, and comity." Executive Software North America, Inc. v. United States District Court, 24 F.3d L545, 1557 (9th Cir. 1994) (internal quotation marks and alterations omitted). If this Court grants the parties' motions to dismiss plaintiffs' federal claims for failure to state a claim, this Court should decline to exercise its discretionary supplemental jurisdiction over plaintiffs' state law claims under

§ 1367(c)(3). Herman Family Revocable Trust, 254 F.3d at 806.

Judicial economy is best served by relegating those claims to state court where they belong. In addition, as discussed below, even if any of plaintiffs' federal claim were to survive the parties' motions to dismiss, this Court should decline supplemental jurisdiction over plaintiffs' state law claims under

§ 1367(c)(1) because they concern novel and complex issues.
The Court Should Dismiss Plaintiffs' Nuisance Claim Against the City on Justiciability and Ripeness Grounds

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21 22

D.

In their third claim for relief, plaintiffs allege that greenhouse gas emissions from the SFERP pose a threat to plaintiffs' health, and the health of the general public, and therefore would be a public 23 nuisance. Two courts have considered similar claims and dismissed them as non-justiciable. See 24 People of State of California v. General Motors Corp.. 2007 WL 2726871 (N.D. Cal., Sept. 17, 25 2007); Connecticut v. American Electric Power Co., 406 F. Supp 2d 265 (S.D.N.Y. 2005). 26 In General Motors, plaintiff sought damages against various automakers for "creating, and
27 contributing to, an alleged public nuisance 28
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global warming." 2007 WL 2726781, at *1. In

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dismissing plaintiff's federal common law nuisance claim, the court held that the "threshold issue" was whether the "complaint raises nonjusticiable political questions that are beyond the limits of this Court's jurisdiction." Id. at *5 In finding that it did, the court held that the "authority and standards for carbon dioxide emissions lie with the political branches of government, and not with the courts." Id. at *10. The court held that Massachusetts lent support to that determination because the Supreme Court held that the federal government and EPA had the authority to regulate greenhouse gas emissions from new motor vehicles. Id. at * 11-12. In Connecticut, plaintiffs filed federal common law public nuisance claims against certain large electric utilities in an effort to abate their contributions to global warming. Connecticut, 406 F. Supp. 2d at 268. The court noted that a case is only justiciable if "the duty asserted can be judicially identified and its breach judicially determined, and [if] protection for the right asserted can be judicially molded." Id. at 271 (quoting Baker v. Carr, 369 U.S. 186, 198 (1962)). The court held that air pollution cases are particularly difficult for courts because they require "strik[ing] a `balance between interests seeking strict schemes to reduce air pollution rapidly to eliminate its social costs and interests advancing an economic concern that strict schemes will retard industrial development with attendant social costs." 406 F. Supp. 2d at 272 (alteration omitted) (quoting Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 847 (1984)). The court therefore rejected plaintiffs' arguments that their claim was a "simple nuisance claim" and found instead that the claim was non-justiciable. 406 F. Supp. 2d at 272-74. This Court should follow the reasoning of those decisions and dismiss plaintiffs' nuisance claim on justiciability grounds. Plaintiffs' third claim for relief also fails because it is not ripe for review. Plaintiffs have improperly asked this Court to enjoin the City from constructing the SFERP until the EPA promulgates new rules that would apply to stationary sources. (Amended Complaint at p. 25,

¶ 6.)

Furthermore, the City's Board of Supervisors has yet to approve the SFERP. As stated above, given these facts this claim is not ripe for review. (See pp. 8-9, infra.)

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E.

This Court Should Dismiss Plaintiffs' State Law Claims Against the City for Failure to State a Claim 1. Plaintiffs have failed to state a claim for a public nuisance

3 4 5 6
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In their third claim for relief, plaintiffs allege that they will be "specially injured" if the City is allowed to construct the SFERP because ground level greenhouse gases "such as ozone" cause respiratory problems to those "directly exposed to the degree that APRI's constituent members will be exposed." (Amended Complaint at 9191 113-14.) A nuisance under California law can be "[ajnything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property." Cal. Civil Code § 3479. A public nuisance under California law is "one which affects at the same time an entire community or neighborhood, or any considerable number of persons." Cal. Civ. Code

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§ 3480. Under California law, a "private person

may maintain an action for a public nuisance, if it is specifically injurious to himself, but not otherwise." Cal. Civ. Code § 3493 (emphasis added); see Brown v. Petrolane, Inc.. 102 Cal. App. 3d 720, 725-26 (1980) (statute is based on common law rule that a public nuisance is dependent "upon an interference with the rights of the community at large"). Furthermore, not every nuisance is actionable under California law. "Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance." Cal. Civ. Code

§ 3482.

The burden of establishing a public nuisance is considerable. To be enjoinable as a public nuisance the claimed "interference must be both substantial and unreasonable." People ex ret. Gallo v. Acuna, 14 Cal. 4th 1090, 1105 (1997). A public nuisance is substantial if it causes "significant harm." Id. (internal quotation marks omitted). It is unreasonable if its "social utility" is outweighed by the "gravity of the harm it inflicts." Id. A court must look at both of these requirements for a public nuisance claim objectively. A court cannot find a claimed interference to be significant if "normal persons in that locality would not be substantially annoyed or disturbed by the situation." Id. (internal quotation marks omitted). A court cannot find a claimed interference to be unreasonable unless "reasonable persons generally, looking at the whole situation impartially and objectively, would consider it unreasonable." Id. (internal quotation marks omitted).
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Here, plaintiffs' allegations that potential ground level ozone emissions from the SFERP are a public nuisance are specious. Both BAAQMD and the CEC examined whether the SFERP would be consistent with local ozone standards. In issuing the FDOC, BAAQMD noted that the "plant will not contribute significantly to ozone." (RJN Exhibit Cat p. 15.) In issuing the AFC, the CEC found that while the SFERP could "contribute to the existing violations of the ozone standards.
. .

the required

mitigation (in the form of emission reduction credits) will mitigate the project's impact to a level that is less than significant." (RJN Exhibit B at p. 111,

§ 7.) As a result, plaintiffs cannot show that a

reasonable person would consider any potential interference with plaintiffs' health or property from potential ozone emissions from the SFERP to be both substantial and unreasonable. Moreover, that the BAAQMD and CEC permits authorized the City to construct the SFERP bars plaintiffs from seeking relief against the City for a public nuisance. See Carson Harbor Village, Ltd. v. Unocal

Corp., 270 F.3d 863, 888 (9th Cir. 2001) (no claim for nuisance against government defendants when
claimed pollution was allowed by state permit). For these reasons, this Court should dismiss plaintiffs' third claim for relief for failure to state a claim. 2. Plaintiffs have failed to state a claim for a writ of mandamus

In their fifth claim for relief, plaintiffs seek a writ of mandamus against the City due to the City's alleged failure to apply the City's "precautionary principle" to the SFERP. (Amended Complaint at 9191 138-42.) The "precautionary principle" is a policy established by the Board of Supervisors that "requires" City agencies to conduct a "thorough exploration and a careful analysis of a wide range of alternatives" and to select "the alternative that presents the least potential threat to human health and the City's natural systems." (S.F. Environment Code

§ 101) (RJN Exhibit L).) The evidence before

this Court shows that the City fully complied with the precautionary principle by considering alternatives to the SFERP. For example, the CEC found that "the evidence of record.
. .

establishes

that no feasible alternatives to the project, as described during these proceedings, exist which would reduce or eliminate any significant environmental impacts of the mitigated project." (CEC Order (RJN Exhibit B at p. 2).) Furthermore, the Board of Supervisors held a hearing for this purpose
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alone. (See RJN Exhibit K.) For this reason alone, this Court should dismiss plaintiffs' fifth claim for relief. Nonetheless, plaintiffs' allegations that the City failed to comply with the precautionary principle do not state a claim. th establishing the precautionary principle, the Board of Supervisors was careful to ensure that a claimed lack of compliance with this policy would not be cognizable in court. "This ordinance does not impose specific duties upon any City employee or official to take specific actions." (S.F. Environment Code § 104) (PiN Exhibit I).) More specifically, the Board of Supervisors included language to ensure that the precautionary principle would not be a legal basis for seeking a writ." [Njor may this ordinance provide any basis for any other judicial relief including, but not limited to a writ of mandamus or an injunction." (Id.) It is clear under California law, therefore, that plaintiffs cannot obtain a writ of mandamus against the City based on the precautionary principle. There are two requirements for issuance of a

writ of mandamus under California law: "(1) the respondent has a clear, present, and usually
ministerial duty to act, and (2) the petitioner has a clear, present, and beneficial right to performance of that duty." State Board of Education v. Honig, 13 Cal. App. 4th 720, 741 (1993); see Cal. Code of Civ. P. § 1085(a). A "ministerial duty" is one generally imposed upon a person in public office who is "obligated to perform in a prescribed manner required by law when a given state of facts exists." Alliance for a Better Downtown Millbrae v. Wade, 108 Cal. App. 4th 123, 129 (2003). The writ "will not issue to compel action unless it is shown the duty to do the thing asked for is plain and unmixed with discretionary power or the exercise of judgment." Unnamed Physician v. Board of Trustees of Saint Agnes, 93 Cal. App. 4th 607, 618 (2001). "Where a statute leaves room for discretion, a challenger must show the official acted arbitrarily, beyond the bounds of reason or in derogation of the applicable legal standards." Excelsior College v. California Board of Registered Nursing, 136 Cal. App. 4th 1218, 1239 (2006). Plaintiffs have failed to properly allege any right to mandamus relief because the language of the precautionary principle leaves no room for doubt that whether to apply the principle to the SFERP was discretionary. For this reason, plaintiffs' allegations that they have a "clear, present, and
S.F. Motion to Dismiss Case No. C-07-4936-CRB
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beneficial right" to the City's application of the precautionary principle to the SFERP, even if true, do not state a claim upon which relief can be granted against the City. V. CONCLUSION Based on the foregoing, this Court should dismiss plaintiffs' complaint in its entirety, along with granting the City such other, further and different relief as this Court deems just and proper. Dated: March 3, 2008 DENNIS J. HERRERA City Attorney OWEN J. CLEMENTS Chief of Special Litigation THERESA L. MUELLER Chief Energy and Telecommunications Deputy WILLIAM K. SANDERS Deputy City Attorney By: WILLIAM K. SANDERS Deputy City Attorney

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Attorneys for Defendant CITY AND COUNTY OF SAN FRANCISCO

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