Wednesday, October 5, 2011

Land Use, Air Quality, and an Important Denial of Cert

On Monday, the Supreme Court caught environmental lawyers’ attention when it asked the Solicitor General to weigh in on three pending environmental cases (some discussion here).  Less noticed, though still noteworthy , was the Court’s denial of cert in a case called National Association of Home Builders v. San Joaquin Valley Unified Air Pollution Control District.

The case involved the issuance by the San Joaquin Valley Air Pollution Control District (the acronym, which just rolls off the tongue, is SJVAPCD) of an “indirect source rule,” which would integrate regulation of development projects into the SJVUAPCD's portion of California’s state implementation plan (in California, regional air districts carry the laboring oar in building the state’s SIPs).  The NAHB challenged that rule.  First at the district court level and then at the Ninth Circuit, the SJVAPCD and its environmental group supporters prevailed.  The Supreme Court’s cert denial brings the case to a close.

The Ninth Circuit opinions (Judge Betty Fletcher wrote for the court; Judge Norman Randy Smith concurred in part and dissented in part) are all about preemption.  NAHB sought, unsuccessfully, to argue that the controls on development were really just controls on non-road vehicles, and therefore were preempted under sections 209(e)(1) and 209(e)(2) of the CAA.  The SJVAPCD countered that its rule really was properly classified as an indirect source rule, and therefore was permissible under CAA section 110(a)(5).  The analysis turns on the intricacies of the Clean Air Act; if you loved reading Engine Manufacturers Association v. South Coast Air Quality Management District, 541 U.S. 246 (2004) you’ll love this too.  What I find more interesting about the case, and the rule subject to challenge, is its significance as a marker of the reintegration of air quality regulation and land use planning.

The challenged rule resurrected (and improved upon) an old idea.  In the 1970s, EPA attempted to compel states to include development controls in their air quality regulatory programs.  When the states refused to do so, EPA tried to impose those controls directly.  The attempts (which, in hindsight, look somewhat ham-handed) were politically disastrous, and Congress quickly acted to limit EPA’s authority to compel states to address the connections between land use planning and development and air quality compliance (for discussion of these attempts, see Patrick Del Duca and Daniel Mansueto, Indirect Source Controls: An Intersection of Air Quality Management and Land Use Regulation, 24 Loy. L.A. L. Rev. 1131, 1149-55 (1991); Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 Yale L.J. 1196, 1203-07 (1977)).  For decades since, land use planning and air quality planning have proceeded on largely separate tracks.  Both are closely linked to transportation planning, but states generally did little to compel more direct connections.  EPA eventually offered guidance on addressing land use planning in SIPs, but never did more than just make the option available.

For the San Joaquin Valley, those separate tracks eventually proved untenable.  The valley’s climate and geography make it just as ideal for growing ozone as for almonds, and emission levels that might not pose problems in cooler, cloudier, and better-ventilated regions can quickly create intense smog.  By the mid-1990s, the area had some of the worst air quality in the country, and attempts to improve that air quality brought disappointing results.  Add in a growing population and a housing market that until recently was booming, and air quality regulators concluded that they had little choice but to address the development/air quality interface.

The approach they pioneered may soon have imitators.  The Bay Area Air Quality Management District, which regulates air quality in the San Francisco Bay Area, already has indicated its interest in creating a similar rule.  Many other areas of the country also seem like candidates to follow suit, particularly if the ozone NAAQS eventually is revised downward.  Household energy consumption, vehicle miles traveled, and pollutant emissions are all linked, and air quality regulators in many other regions may have no option but to confront the connections.  That confrontation will not come easily, for accepting greater environmental regulation of development—particularly regulation stemming from federal law—will not sit well in the current political climate.  Nevertheless, with this case brought to a close, one potential obstacle to greater integration of air quality protection and land use planning has been removed.

- Dave Owen

http://lawprofessors.typepad.com/environmental_law/2011/10/land-use-air-quality-and-an-important-denial-of-cert.html

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