PASADENA, Calif. (CN) – A Southern California smog-control agency did not violate the Clean Air Act with its implementation of an emission-reduction credit program, the 9th Circuit ruled, affirming dismissal of the Natural Resources Defense Council’s lawsuit.
“Because the NRDC failed timely to bring this claim directly to the Ninth Circuit following the promulgation of the EPA rules in 1996 or 2006, it is foreclosed from now bringing the claim as a citizen suit,” Judge Pamela Rymer wrote for the court.
The NRDC claimed that the South Coast Air Quality Management District misused an internal credit system to allow new polluters to offset their emissions with credits from pollution sources that quit polluting years ago.
Now that the system is in place, however, the courts say that the Environmental Protection Agency has sole authority to change the way the system works.
U.S. District Judge George Wu found 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 [State Implementation Plans] that can be implemented in different specific ways.”
During arguments before a three-judge appellate panel earlier this month, Rymer asked the NRDC: “Why couldn’t you have sued the EPA when it approved the credit scheme in 1996 and 2006?”
NRDC attorney Angela Johnson Meszaros replied then that the nonprofit had taken issue with the way the district has enacted the credit scheme.
Emission-reduction credits are created when an existing polluter reduces its emissions or ceases operations altogether. The NRDC complained that the district has created 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.
The 9th Circuit rejected these claims on Wednesday.
“Nothing in the EPA-approved SIP even suggests a tracking system must be applied,” which means the district can continue to create new emissions credits to sell to businesses that need to comply with the act, Rymer wrote.
The district and other appellees, including Southern California Edison and several sanitation districts, were represented by Bradley Hogin with Woodruff, Spradlin & Smart of Costa Mesa, Calif.
The NRDC fought the case alongside Communities for a Better Environment, the Coalition for a Safe Environment and Desert Citizens Against Pollution.