California's Land Development Authority Impeded by Clean Air Act

California's Land Development Authority Impeded by Clean Air Act


California attorney, Alene M. Taber, provides insight into agency use of indirect source rules to improve air quality as required by the Clean Air Act. Land development is considered by regulators to be an ‘indirect source’ of air pollution emissions. In California the practical effect of this practice leads to regulating land use by non-county agencies.   This article explores this practice and illustrates how local and federal regulation may be at odds. It demonstrates how questions arise such as what if compliance with the indirect source rules requires the development of a project that a local government or community does not want, for example, a project with increased density? Does an air district’s influence on developers to implement a different land use pattern infringe on local authority to make land use decisions? In this article, Alene Taber provides a useful exploration of these issues and how they affect the authority of counties and cities to plan or control land use. Ms. Taber writes:
 
     In California, one of the largest air pollution control agencies that reigns over some of the most polluted urban areas in the United States the South Coast Air Quality Management District (SCAQMD) is drafting an ISR [indirect source rule] known as Proposed Rule (PR) 2301. (The SCAQMD is responsible for all Orange County and the urban portions of Los Angeles, Riverside and San Bernardino Counties in California.) According to the SCAQMD, PR 2301 is intended to mitigate emission growth from new residential, commercial, industrial and institutional development, and redevelopment projects. PR 2301 is the regulatory implementation of a control measure, Emission Growth Measure (EGM)-01, that the SCAQMD previously adopted in its 2007 Air Quality Management Plan (AQMP) which is the local contribution to California's SIP. The SCAQMD committed to a modest amount of emission reductions pollutant in the AQMP to be achieved through PR 2301 -- 0.5 tons per day of VOC, 0.8 tons per day of NOx and 0.5 tons per day of PM2.5.
 
     According to the SCAQMD, its authority to implement PR 2301 is twofold. First, the SCAQMD cites to authority in the Health and Safety Code that authorizes air districts to adopt rules to reduce or mitigate emissions from indirect sources. Second, the SCAQMD cites to California Clean Air Act requirements for air districts in California to achieve and maintain state standards by the earliest practicable date and for extreme non-attainment areas to include all feasible measures. Thus, the SCAQMD's rational is that state law mandates that SCAQMD proceed with developing PR 2301 because the San Joaquin Unified Valley Air Pollution Control District (another large air district in California) previously adopted an ISR that was challenged and upheld in court, thus establishing a precedent for these ISRs that the SCAQMD must follow.
 
     This is unusual in that the SCAQMD took a different position in Coalition for Clean Air, Inc. v. South Coast Air Quality Mgmt. Dist., 1999 U.S. Dist. LEXIS 16106 (C.D. Cal. Aug. 27, 1999). The Coalition for Clean Air, and other environmental organizations, sued the SCAQMD when it failed to implement approximately 32 control measures in its 1994 SIP into binding rules and regulations. The SCAQMD justified its position claiming that as time went on the SCAQMD became convinced that certain of the measures provided for in the 1994 SIP were inappropriate. In particular, the SCAQMD objected to the ISRs that called for regulating or limiting vehicle trips to certain events centers, shopping centers, schools, and airports as socially infeasible and not worth pursuing.
 
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