The Ninth Circuit Court of Appeals capped a saga of over seven years on June 18 by extending its March 11, 2015 ruling in support of alternatives to imposing hefty fees on individual companies which have complied with the law, but happen to do business in California’s Central Valley or South Coast. Environmental groups challenged USEPA’s approvals of the alternatives adopted by both the South Coast Air Quality Management District and the San Joaquin Valley Air Pollution Control District. The March 11 ruling, in Natural Res. Def. Council v. EPA (9th Cir. 2015) 643 F.3d 311, upheld the SCAQMD’s alternative, which pays the fees from surplus air quality plan funds. The June 18 ruling in Medical Advocates for Healthy Air v. US Environmental Protection Agency (9th Cir. June 18, 2015, No. 12-73386 (opinion ordered nonpublished)) clarified extension of the March ruling to uphold the SJVAPCD’s alternative, which pays the fees from motor vehicle fees.

Background:

The 1990 Amendments to the Federal Clean Air Act added Section 185 imposing “nonattainment fees” on any “Major Source” of emissions in any area that had severe or extreme air quality problems Southern California and the San Joaquin Valley fell squarely within this provision, which also would apply to businesses emitting over 10 tons per year (100 tons applies to many US regions). While failure was alleged for the region, yet the fees would be levied on individual businesses even though most were in full compliance with the strictest air quality requirements in the Country.
Continue Reading Ninth Circuit Limits Clean Air Act “Nonattainment Fees” in California’s San Joaquin Valley

In Sierra Club v. County of Fresno (Cal. Ct. App. 5th Dist. May 27, 2014), the Fifth Appellate District found fault with the County of Fresno’s (County)  review of the Friant Ranch Project (Project) under the California Environmental Quality Act (CEQA). The appellate court concluded that the County’s Environmental Impact Report (EIR) did not sufficiently correlate the Project’s air quality impacts with impacts on human health, and did not sufficiently define mitigation measures designed to address air quality impacts. With respect to correlating air emissions to human health impacts, it is worth noting that the court did not address the extent to which this is possible. Initial reactions from air consultants who have reviewed this decision is that it is not technically possible to calculate this correlation with such specificity, leaving open the question of how lead agencies will respond to this decision in future CEQA documents.
Continue Reading What’s a ROG and Can It Hurt Me? EIR Overturned For Failure to Explain Air Quality Impacts to Human Health