SAN FRANCISCO (CN) — A panel of Ninth Circuit judges heard oral arguments on Tuesday over emissions-related claims that the city of San Francisco unlawfully installed generators for homeless people in its Candlestick Heights area.
The Candlestick Heights Community Alliance, the group that brought the lawsuit, contested a lower court judgment that it lacks standing and didn’t properly notify the city of its intent to sue.
“The trial court’s analysis on standing and redressability is infected with an error that this court and the Supreme Court have rejected,” Lucas Williams of Lexington Law Group, who represents the plaintiffs, told the panel of judges.
In its 2023 lawsuit, the group claims the city violated the Clean Air Act when it set up 16 diesel generators at the Candlestick Point State Recreational Area, a state park in the Bayview Hunters-Point neighborhood which the city operated as a temporary shelter and resource center for unhoused people living in their vehicles.
The Candlestick Heights group claims the move negatively affected the nearby neighborhood of Bayview, a historically Black and economically disadvantaged area whose residents were forced to breathe the generator’s emissions, exposing them to cancer risks and toxic air contaminants.
According to the plaintiffs, the city violated the Clean Air Act when it neglected to obtain permits for the generators.
The city counters that because each of its 5-horsepower generators was below 50 horsepower, it was exempt from the permitting process, while the plaintiff group points out that the total added up to over 80 horsepower.
As part of their lawsuit, the Candlestick Heights Community Alliance sought an injunction and civil penalties of up to $109,000 per day for each violation.
In December 2023, a lower court ruled in favor of the city, finding any Clean Air Act violations were abated because the city had removed almost half of the generators by the time Candlestick Heights filed the lawsuit — bringing its total horsepower well within the 50-unit requirement.
Furthermore, the court stated that an order preventing San Francisco from operating the generators without a permit wouldn’t redress the supposed harm of exposing communities to harmful emissions.
Thus, the lower court dismissed the case for lack of standing in December 2023. The alliance appealed the decision in January 2024.
In court, the panel of judges probed both sides’ arguments with a great deal of attention.
U.S. District Judge Salvador Mendoza Jr. interrogated the city’s stance that the generators in question were exempt from permitting simply because they were under 50 horsepower.
“Is it the city’s contention that the city could have had 100 generators and still have been in compliance?” the Biden appointee asked. “In other words, is this subject to being repeated again?”
“There is no threat of recurring harm when the generators in use were temporary and have been fully replaced with solar installations,” deputy city attorney Kathy J. Shin told the court.
This switch, Shin argued, reinforces the idea that no injunction was necessary and the lower court correctly decided the issue.
The judges also needled plaintiffs’ on their claims that their harms were still redressable via damage awards and an injunction.
“Can you explain how the harm you allege is redressable when the city already removed 8 out of 16 generators by the time the complaint was filed, making the aggregate horsepower output less than 50?” Mendoza Jr. asked.
The plaintiffs pushed back, arguing that without an injunction, nothing is preventing the city from doing the same thing again. They also claimed that awarding damages would further discourage the city from retrying something similar.
“When you hit someone in their pocketbook, they’re less likely to do it again,” Williams said.
The panel did not indicate when it would issue a ruling.
In an interview outside the courthouse, Williams told Courthouse News he found the proceedings “encouraging,” but he was hesitant to make any predictions about the outcome.
“I think it went well, but this is a very well-prepared panel and they had very difficult questions for both sides,” Williams said. “I would say it’s sort of a coin flip how the court’s going to end up on this one.”
A spokesperson for the city attorney’s office said it had no comment on the case beyond what was discussed in court.
The panel of judges was rounded out by U.S. Circuit Judges Anthony Johnstone and Holly Thomas, both Biden appointees.