High Court Urged to Dump Southland Clean-Air Rule

Lawyers for diesel-engine makers, the oil industry and the Bush administration urged the Supreme Court on Wednesday to throw out a 2-year-old anti-pollution rule in Southern California. It requires the buyers of buses, garbage trucks, airport shuttles and other fleet vehicles to choose cleaner-burning engines.

The rule, which was adopted by the South Coast Air Quality Management District, is intended to result in replacement of the region’s diesel engines over a decade with newer models on the market, including trucks powered by natural gas. It applies to cities in Los Angeles, Orange, Riverside and San Bernardino counties and the U.S. Postal Service, and to private firms that haul trash or shuttle travelers to airports.

Air quality regulators said 70% of the cancer risk from bad air came from diesel particles. The smog also has been blamed for an increase in asthma, especially among children.

Advocates for the diesel industry and the administration said the Southern California rule violates the federal Clean Air Act.

“Congress determined there should be a uniform standard” regulating the makers of cars, trucks and buses in the United States, said Solicitor Gen. Theodore B. Olson. If states and cities could adopt their own pollution standards for vehicles, he said, it would “disrupt the national economy.”

If the air quality regulators in Los Angeles can impose their own anti-pollution standards for new vehicles, “you have to consider that every locality” might do the same, said Carter G. Phillips, a Washington lawyer representing the Engine Manufacturers Assn. and the Western States Petroleum Assn.

Olson and Phillips faced skeptical questions from several justices.

“Why can’t a local agency decide it will buy no diesel vehicles?” asked Justice Sandra Day O’Connor. “Suppose it wants to establish this standard for itself.”

“It seems to me a state can do whatever it wants with its own vehicles,” said Justice Anthony M. Kennedy. If city officials decided to buy garbage trucks that emit less pollution, that is their choice, not a regulation imposed on the diesel industry, O’Connor and Kennedy suggested.

The anti-pollution rules were defended by Seth Waxman, a Washington lawyer who was President Clinton’s solicitor general. He argued that the Clean Air Act bars states and cities from imposing regulatory requirements on vehicle manufacturers. It has no effect, however, on the purchasing policies of states and cities, he argued.

When Congress passed the Clean Air Act, it did “not want manufacturers to have to build different cars for different parts of the country,” Waxman said. By contrast, the “fleet rules” in California do not require manufacturers to devise new engines. Instead, the rules require buyers to choose clean engines from among those “that are already commercially available,” he said.

The rules “operate on manufacturers through the wallet,” Waxman told the court.

The South Coast Air Quality Management District adopted the regulations in 2000. They took effect in 2002.

Lawyers for the diesel industry challenged the regulations in federal court on the theory that they are trumped by a provision of the Clear Air Act that bars states and other agencies from adopting “any standard relating to the control of emissions from new motor vehicles.”

A federal judge in Los Angeles rejected the challenge, and the U.S. 9th Circuit Court of Appeals upheld that ruling last year in a one-line opinion. But the Supreme Court agreed to hear the industry’s appeal, and the Bush administration joined the case to support the industry’s position. During much of the oral argument, most of the justices sounded as though they leaned toward upholding the Southern California rules. The case is Engine Manufacturers vs. South Coast Air Quality Management District.

The court also heard arguments in a Florida case that was being closely watched by water districts in California and the West. At issue is whether water districts must obtain a federal permit whenever they pump water into a new drainage system. Usually, permits are required only for those that add pollution to the water.

Lawyers for the South Florida Water Management District near Fort Lauderdale said they don’t need a water permit to pump water across a levee and into the drainage area of the Everglades. They were sued by the Miccosukee Indian Tribe, which said the pumped water was polluting the Everglades.

The ruling is expected to clarify when a permit is required.