National Association of Home Builders v. San Joaquin Valley

Dec 7: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-17309. In this important case, in response to levels of pollution that violated national air quality standards, the San Joaquin Valley Unified Air Pollution District adopted "Rule 9510," which requires development sites to reduce the amount of pollutants they emit. The National Association of Home Builders (NAHB) sued the District, claiming that Rule 9510 is preempted by the Clean Air Act.

 

    The district court held that Rule 9510 is not preempted and the majority Appeals Court affirmed that decision. The majority said, "Rule 9510 is an indirect source review program that is not preempted by section 209(e) of the Clean Air Act. The district court's judgment is therefore affirmed."

 

    The separate, concurring in part and dissenting in part, opinion indicated, "Though I agree with the majority opinion that § 209(e)(1) of the Clean Air Act (Act), 42 U.S.C. § 7410 et seq., does not preempt Rule 9510 promulgated by the San Joaquin Valley

Unified Air Pollution Control District (District), I respectfully dissent from Parts IV and V. In my view, Rule 9510 is preempted by § 209(e)(2) of Act because (1) the regulation does not qualify as an 'indirect source review program' under § 110(a)(5), since it directly regulates construction equipment (which are direct emissions sources); and (2) the regulation creates an emissions control 'standard' for construction equipment that has not been approved by the Environmental Protection Agency (EPA)."

 

    Access the complete opinion (click here).