PASADENA, Calif. (CN) – The Natural Resources Defense Council asked the 9th Circuit to hold power companies and other polluters accountable for skirting federal Clean Air Act provisions with the help of the South Coast Air Quality Management District.
Angela Johnson Meszaros, representing the NRDC and co-appellants, said her clients have standing as citizens to pursue their claim that the smog-control agency misuses an emissions-reduction credit program.
“Somehow the [agency] is arguing that its credits don’t need to meet the requirements of the SIP,” Meszaros said, referring to the State Implementation Plan each state must develop to comply with the Clean Air Act.
U.S. District Judge George Wu ruled in January that the NRDC could not “maintain a citizen suit action under the Act,” which “does not contain ’emissions standards or limitations’ but sets forth general requirements for SIPs that can be implemented in different specific ways.”
In a hearing before the 9th Circuit Thursday, Meszaros said the NRDC may try to force compliance even if the Environmental Protection Agency refuses.
“Why couldn’t you have sued the EPA when it approved the credit scheme in 1996 and 2006?” Judge Pamela Rymer asked.
Meszaros said the EPA is not the issue, but that the South Coast Air Quality Management District has not properly implemented the EPA-approved SIP that requires new sources of air pollution to be offset with emission-reduction credits.
“Where’s the EPA on this?” Judge Stephen Trott asked, saying that the EPA would have joined forces with the NRDC if the district was not heeding EPA rules.
Meszaros said she “would have liked for the EPA to be here,” but it declined.
Bradley Hogin, representing the district, countered that he had an explanation for the EPA’s absence.
“The EPA agrees 100 percent with the district’s position,” Hogin said, citing documents the EPA put out in 1996 and 2006 that he said show that the emissions credits the district has in its internal bank meet the Clean Air Act’s credibility requirements.
Emission-reduction credits are created when an existing polluter reduces its emissions or ceases operations altogether. The NRDC takes particular issue with the district’s practice of creating new emissions credits from pollution sources that quit polluting years ago, some before 1990. Those credits can then be sold to businesses that need to comply with the act.
“NRDC does not object to emission-credit trading, per se, but we do object to making up credits from events that happened long ago to allow current polluters to poison their neighbors,” NRDC director David Pettit said in a blog entry.
Hogin, the district’s lawyer, listed a number of reasons to throw out the NRDC’s case. “They are proceeding under the wrong statute, in the wrong court, against the wrong defendant, at the wrong time and seeking the wrong relief,” Hogin said, to chuckles from the judges. “Other than that I suppose their claim is in pretty good shape.”
Hogin, who represents the district and co-appellees that include Southern California Edison and several sanitation districts, is from the firm Woodruff, Spradlin & Smart in Costa Mesa, Calif.
The NRDC’s co-appellants include Communities for a Better Environment, the Coalition for a Safe Environment and Desert Citizens Against Pollution.