Litigation
Jul. 30, 2002
Air Quality In Bay Area Gets Scrutiny In Courtrooms
SAN FRANCISCO - Northern California and the Central Valley - two regions whose pollution historically has been overshadowed by the smog problems of Los Angeles- appear to be emerging as major battlegrounds in the state's struggle over air quality.
The latest blow was struck Friday when a panel of the 9th. U.S. Circuit Court of Appeals put on hold at least until October the Environmental Protection Agency's approval of a key element of the Bay Area's air quality plans. That action could threaten billions of dollars in federal transportation funding for the region.
The circuit court's order followed two other significant developments in the past week:
• Monday, U.S. District Judge Thelton Henderson ordered regional transit officials to accomplish a major boost in ridership over the next four years as part of an effort to clean up the air.
• Tuesday, the state's biggest agriculture group, the California Farm Bureau Federation, said it was going to the 9th Circuit to challenge a recent EPA decision to settle a lawsuit with environmentalists by imposing new air quality restrictions on farming operations.
Together, the flurry of activity is bringing fresh scrutiny to the Bay Area, which has tended to bask in its clean, green reputation at the expense of its smoggy neighbor to the south.
"I think the Bay Area has always had this smug sense of superiority, as opposed to L.A.," said Richard Drury, legal director for Communities for a Better Environment, which was involved in both recent transportation-related cases.
While he said it is true that the Bay Area enjoys better air quality, the region has flunked federal smog standards. At the same time, one reason for the relative purity of the Bay Area's air is that "so much of our pollution blows into the Central Valley," Drury said.
Significantly, air pollution control officials in Sacramento joined with environmentalists in asking the 9th Circuit to block the EPA's approval of the Bay Area's plans. Under the Clean Air Act, appeals of agency decisions are taken directly to the appropriate circuit court of appeals.
"It is undisputed that Bay Area ocean breezes transport pollutants into the Sacramento and Central valleys," attorneys for the Sacramento Metropolitan Air Quality Management District said in written arguments.
Environmentalists have produced figures that show some parts of the San Joaquin Valley, in fact, are more polluted than the Los Angeles Basin.
"The time for denial of the problem is over," said Drury. He said Bay Area air quality and transportation planners "are going to have to address this problem or they are not going to have money to build highways."
Among the efforts needed are moving people out of their cars and into public transit, imposing a stricter smog-testing regimen on the region's cars and cracking down on pollution from refineries and power plants, he said.
Henderson's ruling addressed the first of those demands, ordering officials to increase use of public transportation by about 42 million riders annually, an increase of nearly 8 percent over current projections. Bayview Hunters Point Community Advocates v. Metropolitan Transportation Commission, C01-0750TEH.
Friday's 9th Circuit decision technically involved the EPA's approval earlier this year of what is known as the "motor vehicle emissions budget." That is an estimate of auto pollution that plays an important role in deciding which new highways and other transportation projects can be allowed.
Opponents argued that the emissions budget approved would allow 26 tons a day of pollution over what would be acceptable under federal air standards.
"It's a total estimate of what life will be like in 2006," said Randy Rentschler, a spokesman for the Metropolitan Transportation Commission, in charge of doling out federal transportation funds in the Bay Area.
Rentschler said commission studies suggest that many improvements in mass transit ridership would yield only small reductions in pollution.
"The blind assertion that transit alone will improve air quality is an assertion that needs to be checked against the numbers," he said.
The MTC earlier in the week postponed a decision on a three-year blueprint on how to allocate $9 billion for transportation projects, following a prior emergency order issued by the 9th Circuit putting the EPA's approval on hold.
Judges James R. Browning, Alex Kozinski and Marsha Berzon agreed Friday to extend that stay. They handed the case off to another panel and ordered oral arguments to be heard on the issue in early October. Transportation Solutions Defense and Education Fund v. U.S. Environmental Protection Agency, 02-70443.
"That's not a great thing," said Rentschler. He said that if the commission cannot complete action on a new transportation program by the beginning of the fiscal year Oct. 1, some of the approximately 1,000 projects covered by the program could not be funded.
EPA spokesman Leo Kay confirmed that assessment.
"We continue to stand by our decision to find the emissions budget adequate," he said. "Our feeling is, we did a pretty thorough reading of the Clean Air Act on this one and we'll be defending it soon enough."
The Farm Bureau's action challenges a decision announced by the EPA in May effectively ending California's state law exemption for agriculture from air quality permits required for "major" sources of pollution. Some diesel generators on farms and feed lots may have to obtain permits and curtail emissions under the settlement between the federal agency and environmentalists.
While the agreement would not change California law, it would place the EPA in charge of issuing permits, at least until California lawmakers remove the agricultural exemption. Last week the EPA took formal steps to implement the agreement.
The Bush administration had previously decided to wait another three years to study the issue, prompting the lawsuit from environmentalists.
"California state law needs to comply with the Clean Air Act," read a statement issued by Jack Broadbent, the EPA's regional air division director in San Francisco. "As soon as California removes the agricultural exemption from state law, the EPA will return the permitting authority to the state."
But an attorney for the farm organization, which contends the settlement violates the agency's own rules, said the EPA had it right the first time.
"There is a lot of question about whether many of these operations constitute major sources," said Craig de Recat, of Los Angeles' Manatt, Phelps & Phillips. He said even the three-year study period earlier endorsed by the government was considered "a pretty aggressive timeline" for considering the issue.
Dennis Pfaff
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