Monday, October 3, 2011

SCOTUS Denies Challenge To CA Indirect Air Source Rule

Oct 3: The U.S. Supreme Court refused to hear a case appealed by the National Association of Home Builders (NAHB) regarding the San Joaquin Valley Unified Air Pollution District "Rule 9510," which requires development sites to reduce the amount of pollutants they emit. 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 in a split decision, 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." [See WIMS 12/8/10]. On June 16, 2011, NAHB petitioned for review in the Supreme Court (Case No. 10-1528. 
  A release from Earthjustice indicated, the regulation, known as the Indirect Source Rule (ISR) was adopted by the San Joaquin Valley Unified Air Pollution Control District in December 2005 and took effect in March 2006. It requires developers to mitigate pollution from the increased traffic generated by new development. Developers can either incorporate into their projects, elements that will minimize traffic-related emissions such as building near public transit, adding bicycle lanes, or building walkable shopping into the plans, or pay a mitigation fee to the district to be used to purchase off-site emission reductions.

    Paul Cort an attorney for Earthjustice who participated in the litigation of the issue in the lower courts and filed an opposition to the Homebuilders petition for Supreme Court review said, "We were glad to stand with the San Joaquin air district to defend this rule. No special interest should have a free ride in a region where schools and parents are frequently warned to keep children indoors on bad air days." Timothy O'Connor of the Environmental Defense Fund said, "The Supreme Court's action supports this common sense regulation to clean up the air in one of the most polluted areas in the country. Now the trade associations will have to follow the lead of the hundreds of California developers who have complied with this pollution-cutting measure."

    Gordon Nipp of the Sierra Club's Bakersfield chapter said, "Every sector must do its part to help clean up our air in the San Joaquin Valley, some of the worst in the nation. Agriculture is learning to comply with the federal Clean Air Act, and now the homebuilders will join the fight against air pollution, despite their past legal recalcitrance." Earthjustice represented Environmental Defense and the Kern-Kaweah (Bakersfield), Tehipite (Fresno), and Mother Lode (Sacramento) Chapters of the Sierra Club in the lower court litigation.

    Access the Supreme Court denial (click here, see page 71). Access the Supreme Court docket (click here). Access the Earthjustice release (click here). Access the Ninth Circuit opinion (click here). [#Land, #Air, #SupCt]

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