Calif. Valley Can Regulate Developers’ Emissions

     (CN) – The San Joaquin Valley’s local air quality rules requiring construction sites to reduce pollution don’t clash with the federal Clean Air Act, the 9th Circuit ruled Tuesday.




     The federal appeals panel in San Francisco affirmed a district court finding that the San Joaquin Valley Unified Air Pollution District’s 2006 rule limiting emissions from development projects is not preempted by the federal law.
     Rule 9510 requires San Joaquin developers to use computer models to establish a baseline level of emissions, and then reduce those levels by 20-45 percent. Developers who can’t reduce their pollution may pay an offset fee to pay for reductions elsewhere.
     The National Association of Home Builders (NAHB) challenged the rule in 2007, arguing that it was preempted by the Clean Air Act because it attempted to impose standards on air quality, that it was “a ruse adopted simply to regulate emissions from nonroad vehicles, a task that the Act prevents California from attempting without first securing the EPA’s approval,” according to the ruling.
     The district court ruled for the district and intervenors the Environmental Defense Fund and the Sierra Club. It found that, since the rule is clearly an “indirect source review program,” it is not superseded by federal law.
     The three-judge appeals panel agreed.
     “NAHB’s claim of preemption does not follow from its premise,” wrote Judge Betty Fletcher for the panel. “Even if Rule 9510 establishes standards or requirements, those requirements do not relate to the control of emissions from construction equipment.”
     Instead, the rule regulates emissions from construction sites, which qualify as indirect sources, Fletcher explained.
     “Rule 9510 escapes preemption because its regulation of construction equipment is indirect,” she wrote. “Rule 9510 does not measure emissions by fleets or groups of vehicles; it measures emissions on a ‘facility-by-facility’ basis.”
     In partial dissent, Judge N. Randy Smith argued that the rule is preempted by the act because it does not qualify as an indirect source review program.
     “… It directly regulates construction equipment (which are direct emissions sources); and (2) the regulation creates an emissions control ‘standard’ for construction equipment that has not been approved by the Environmental Protection Agency,” he wrote. “Any standard relating to the control of nonroad vehicle emissions that the EPA has not authorized is impliedly preempted.”

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