Court Orders EPA to Reject Southland’s Smog Plan

The Environmental Protection Agency was ordered Tuesday to reject Southern California’s air pollution control plan in a federal appeals court ruling that concludes that the agency is required to enforce this year’s deadline for meeting air quality standards.

Siding with a coalition of environmental groups challenging the state’s failure to meet federal ozone and carbon monoxide standards, the U.S. 9th Circuit Court of Appeals was critical of the EPA’s “recalcitrance” and said it had “no option” but to step in.

Parties to the lawsuit were divided in their assessment of the effect of the ruling.

Environmentalists suggested that the court order is likely to mean a quick ban on construction of major new pollution sources within the four-county South Coast area, including waste-to-energy plants and a small percentage of major new industrial polluters.

It also could mean the agency would consider even stronger sanctions, including a cutoff in federal highway and sewer construction funds, though state and federal officials predicted Congress would act to extend the air quality deadline before such sanctions would become necessary.

“I’m ecstatic. The court totally vindicated our position,” said Mark Abramowitz, a Los Angeles environmental leader who filed the original lawsuit challenging the EPA’s approval of a pollution control plan for the South Coast Basin, which includes Los Angeles, Orange, Riverside and San Bernardino counties.

Abramowitz predicted that the decision will force the state to adopt a variety of more stringent pollution control measures, including stronger emission standards for new cars, increased warranty requirements to extend the life of automobile smog equipment, and tighter controls on industrial polluters.

“I hope to get expeditious progress toward attainment of the standard, and I want to see, at a minimum, all feasible measures implemented to achieve the standards,” Abramowitz said.

But state and local air quality control officials said the state is already moving to adopt stronger standards and predicted that the court’s ruling would have little immediate effect.

And the EPA has already said it will disapprove the plan and impose a construction ban. However, no timetable for the construction ban has been set and the prohibition is not considered likely to have much effect.

California’s smog standards are already the strongest in the nation and there is little that the EPA is likely to require that is not already being attempted, said Bill Sessa, a spokesman for the state Air Resources Board.

The federal Clean Air Act sets a Dec. 31 deadline for meeting a strict set of standards for ozone and carbon monoxide levels, standards that as many as 70 urban areas throughout the country are not expected to meet.

The EPA initially gave tentative approval to California’s smog cleanup plan, recognizing that while the Los Angeles Basin has no hope of meeting the standards for at least the next 20 years, it is making significant progress in cleaning up the air.

Then, just before the case was argued in August, the EPA announced that it would disapprove the South Coast plan and impose a construction ban, but did not say when it would act.

In their ruling Tuesday, Judges Charles Wiggins, Diarmuid F. O’Scannlain and Earl H. Carroll said the agency had no authority to give even tentative approval to a plan that did not provide for meeting the air quality goals by the Dec. 31 deadline.

“Although the agency’s task may be difficult, it must nevertheless comply with its legislative mandate,” the appeals court said.

“Placed between the express intent of Congress and the recalcitrance of the agency, the proper role of this court in this case must be to remind the agency that its duty is to apply the existing law.”

“The judges’ order reinforces the direction of the agency,” EPA spokesman Terry Wilson said afterward. “We were already in the process of disapproving the plan, and the EPA will continue to expeditiously evaluate the comments regarding the proposed disapproval.”

A ban on construction of new major pollution sources is required under federal law if the plan is disapproved, as the court has ordered, Wilson said, but he said additional sanctions such as federal highway fund cutoffs are optional.

State officials predicted that a construction ban would have little effect in the state because most major industries, operating under current standards, do not cause enough emission to qualify as major polluters under federal law.

In any case, the issue could become moot if Congress extends the deadline for compliance with the air quality standards, the ARB’s Sessa said.

The current federal ozone standard requires that ozone levels cannot exceed 0.12 parts per million parts of air for more than an hour. Southern California exceeds that level an average of 170 to 180 days a year, Sessa said, but recent studies also show that pollution has been cut in half in all areas of the Los Angeles Basin over the last 12 years.

“This comes at a time when the number of cars in the basin has more than doubled, the number of miles that they drive a day has more than doubled, and there has been an equal increase in the number of stationary sources of air pollution,” Sessa said.

Officials of the South Coast Air Quality Management District, which monitors stationary pollution sources in the region and helped develop the pollution control plan, said they are already in the process of developing a new air quality plan.

Mandatory Car-Pooling

The AQMD is looking at requiring mandatory car-pooling for some employers, curtailing the sale of “pollution rights” among industries and requiring new and more costly controls on industries, said Tom Eichhorn, spokesman for the district.

“The immediate impact of the court order is to lend weight to our proposals to aggressively pursue a new plan which demonstrates attainment (of the standards) and to implement rules in new (regulatory) areas,” James Lents, head of the district, said in a prepared statement.

“The silver lining in this is two-fold,” Lents added. “It lends support to the new rules we had proposed. It also dramatically illustrates that we need to have the Congress take action on amendments to the Clean Air Act now pending and chart a course for the future.”