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Judge Rules Smog Plan Cutbacks Illegal

Environment: He says AQMD and Air Resources Board neglected 'duty' to uphold '94 regulations, which officials say are unfeasible. An appeal is planned.

October 06, 1998|MARLA CONE | TIMES ENVIRONMENTAL WRITER

In a resounding victory for environmentalists, a federal judge ruled Monday that California officials violated clean air laws by scaling back their attack on smog in the Los Angeles Basin.

The judge told the South Coast Air Quality Management District and the California Air Resources Board that they "have a duty" under the Clean Air Act to implement 32 measures they outlined in a 1994 smog plan but then weakened or abandoned when the plan was revised three years later.

U.S. District Judge Harry L. Hupp in Los Angeles issued his ruling with an unusual summary judgment in a lawsuit filed by environmentalists a year ago.

Among the measures never carried out is a program to buy and scrap as many as 75,000 old cars per year. Others establish tougher standards for household paints and industrial cleaning solvents, as well as ride-share programs at shopping malls and schools, and pollution limits for bakeries and restaurant charbroilers.

"Our hope is this will shake up the agencies to do what they are required to do in the first place," said Gail Ruderman Feuer, a senior attorney at the Natural Resources Defense Council, which teamed with the Coalition for Clean Air and Communities for a Better Environment to file the suit.

"These agencies are finally being clubbed over the head by a court," she said. "This is the first time the court is saying, 'You better get on track to clean the air, and I'm not going to accept your excuses anymore.' "

AQMD officials, however, said they have no intention of imposing the measures and plan to appeal the ruling.

"The rules will be difficult to implement. We know that they are infeasible, either for technical or other points of view," said AQMD spokesman Tom Eichhorn. "In some cases, the Legislature has prohibited us from implementing them. We have no choice but to appeal this matter."

The judge did not issue an order to adopt the rules by a deadline. Instead, he ruled that the law was violated, but the remedy won't be addressed until a hearing, expected next year.

The state air board will not decide whether to appeal until the judge holds that hearing, said Air Resources Board General Counsel Kathleen Walsh.

"Nothing happens at this point," Walsh said. "All the judge has done is made a decision as to our liability."

The environmentalists said they have been waiting years for implementation of these rules, and threatened to seek an order forcing action if the two agencies drag out the fight.

"If they don't change their ways immediately," Feuer said, "we will ask this court to issue an injunction forcing them to adopt these measures promptly."

The tough smog plan adopted in 1994 was the first and only one to be approved by the U.S. Environmental Protection Agency for California. The controversial revision in 1997 scaled back the amount of pollution that would be eliminated by 200 tons a day, a substantial reduction.

AQMD officials contend that they dropped or scaled back 30 measures they are responsible for enforcing because the steps are too difficult, if not impossible, to achieve. An example is a series of measures that would have forced arenas, schools and shopping centers to have ride-share programs that encourage people to take mass transit or carpool to sports events, stores or festivals. The rules were so unpopular that the Legislature limited the AQMD's power to adopt some of them.

Other rules aimed at specific manufacturers, such as aerospace and printers, were dropped by the AQMD because the technology had not been perfected yet, or they were considered too costly for the benefits received.

By issuing a summary judgment, Hupp ruled that no trial was necessary to prove the environmentalists' case.

"Once a [smog plan] is approved by the EPA, the state and local agencies involved have a duty to implement the plan," Hupp wrote.

Hupp wrote in his ruling that many of the abandoned rules "were expensive, were technically difficult and relied on estimates as to the seriousness of the contribution to pollution." But he said the court "could not refuse to enforce a requirement because the sponsoring agency now believes it is infeasible, or technically difficult or expensive or politically difficult, etc. Those decisions are for the EPA."

The smog plan, revised every three years, is critical for guiding efforts to clean up the air in Los Angeles, Orange, Riverside and San Bernardino counties, the nation's dirtiest. It is more than a vague outline of future actions; it details precise steps that the AQMD and state are promising to take to achieve health standards for air pollution.

If each measure is not implemented, the EPA must step in and force action. Under federal law, the public has the power to sue to enforce clean-air plans if the EPA does not.

The judge said his order is moot if the EPA approves the new plan that drops the disputed measures.

EPA officials, who have been reviewing the new plan for 1 1/2 years, have called it "unapprovable" but they have not officially rejected it.

On Monday, AQMD officials blamed the EPA for the judge's ruling and said they plan to sue the federal agency to force action on their new plan.

"Clearly, the court ruling would not have occurred if the EPA had acted according to the Clean Air Act and approved our revised 1997 clean air plan," Eichhorn said. "The latest plan recognized the infeasibility of these rules."

The state air board was responsible for enforcing two of the disputed measures. One, a proposal to buy and scrap old heavy-duty trucks, was dropped because of the cost. Another--the car scrapping--remains on the back burner at the state air board because of a lack of funding.

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