                                                                            FILED
                             NOT FOR PUBLICATION
                                                                            AUG 28 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


WILD EQUITY INSTITUTE; SIERRA                    No. 15-70199
CLUB,

              Petitioners,

 v.                                              MEMORANDUM*

U.S. ENVIRONMENTAL PROTECTION
AGENCY; SCOTT PRUITT,
Administrator, United States
Environmental Protection Agency,

              Respondents.


                     On Petition for Review of an Order of the
                        Environmental Protection Agency

                     Argued and Submitted February 14, 2017
                            San Francisco, California

Before: W. FLETCHER and RAWLINSON, Circuit Judges, and GORDON,**
District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Andrew P. Gordon, United States District Judge for
the District of Nevada, sitting by designation.
      Wild Equity Institute and the Sierra Club (collectively “Wild Equity”)

petition this court to review the Environmental Protection Agency (“EPA”)

Administrator’s denial of Wild Equity’s Petition for Objection to Permit

(“Petition”). The Bay Area Air Quality Management District (“BAAQMD”), a

local entity responsible for enforcing some Clean Air Act (“CAA”) permitting

requirements, proposed to issue a Title V operating permit to Pacific Gas and

Electric (“PG&E”) for the Gateway Generating Station (“Gateway”) in Antioch,

California. The Administrator did not object to the issuance of the Title V permit.

Wild Equity then petitioned the Administrator to review her decision. The

Administrator denied Wild Equity’s Petition.

      Wild Equity timely petitions for review by this court. We have jurisdiction

pursuant to 42 U.S.C. §§ 7661d(b)(2) and 7607(b)(1). “In considering . . . [a

Petitioner’s] petition for review, we do not decide whether . . . [the] substantive

argument . . . is correct. Rather, we consider only whether the EPA Administrator

erred in determining that . . . [Wild Equity] failed to demonstrate, pursuant to 42

U.S.C. § 7661d(b)(2), that the final Title V permit . . . did not comply with the

CAA.” MacClarence v. U.S. E.P.A., 596 F.3d 1123, 1129 (9th Cir. 2010).

      We deny Wild Equity’s Petition. A prior Prevention of Significant

Deterioration (“PSD”) permit was issued after Section 7 consultation under the


                                           2
Endangered Species Act. That PSD permit expired, but PG&E continued and

completed construction on Gateway. PG&E and the EPA thereafter entered into a

consent decree, settling an enforcement action brought by EPA. The consent

decree allows Gateway to operate without a new PSD permit. The Administrator

did not abuse her discretion in concluding that there are no applicable PSD permit

requirements that apply to the proposed Title V permit challenged in this suit.

      The petition to review the Administrator’s order is DENIED.




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