Ninth Circuit Invalidates EPA’s Approval of Valley’s 2004 One-Hour Ozone SIP Based On Failure to Address “Stale” Emissions Data

Environmental Litigation

Recently, Honorable Judge Ronald M. Gould, writing for a panel of the Ninth Circuit Court of Appeals, found the Environmental Protection Agency’s (“EPA”) 2010 approval of the San Joaquin Valley’s 2004 1-hour ozone National Ambient Air Quality Standard plan (“2004 SIP”) was arbitrary and capricious, citing EPA’s failure to adequately address the potential staleness of mobile source emissions data used to formulate the plan’s emissions inventory.  The court’s decision invalidates EPA’s approval of the plan and requires the agency to conduct its review process anew.  The case potentially signals EPA’s more stringent review of the accuracy and currency of emission inventories during its plan approval process. 

Following EPA’s approval of the 2004 SIP, Sierra Club and several environmental groups petitioned the Ninth Circuit Court Appeals to review EPA’s approval on the basis that mobile source data, current at the time the plan was submitted to EPA in 2004, was outdated and inaccurate by the time the plan, which was amended in 2006 and clarified in 2008, was approved in 2010.  During the six-year period between plan submission and approval, California had replaced the computer modeling tool it used to estimate mobile source emissions with the next generation of that modeling tool, which was better able to capture emissions from heavy-duty trucks.  Also during that time period, California had presented EPA with the Valley’s 2007 SIP for the 8-hour ozone standard (“2007 SIP”), which relied on data compiled through the use of the updated tool.  The court noted that a comparison of the emissions inventories in the 2004 and 2007 plans revealed apparent disparities in emissions estimates for nitrogen oxides (NOx), with the 2004 SIP potentially underpredicting total daily NOx emissions in the Valley.  In the court’s opinion, these disparities, which the court attributed to the state’s change in modeling tools, undermined the accuracy and currency of the 2004 SIP emission inventory data.

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READY, OFFSET, GO: A LOOK AT THE FINAL CAP-AND-TRADE REGULATION’S OFFSET PROGRAM

Climate Change

The time has finally come… California’s cap-and-trade regulation finally went into effect in January of 2012 (not without its litigation drama along the way – see here, here, here, here, and here for the full saga).  The crowning jewel of California’s AB 32, the regulation establishes an overall cap on greenhouse gas (GHG) emissions for all covered sources.  There are two “compliance instruments” contemplated as a part of the cap-and-trade regulation.  In other words, there are two different items that a covered facility may obtain to allow them to emit GHGs: (i) allowances, which are a particular facility’s tradable portion of the total GHGs permitted to be emitted under the overall cap, and (ii) offsets, which are projects that will reduce emissions outside of the cap.  This article will focus on the regulation’s offset program which is run by the California Air Resources Board (ARB).

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Greenhouse Gas Data Just a Click Away

Climate Change

Earlier this month, the United States Environmental Protection Agency (EPA) released for the first time comprehensive greenhouse gas (GHG) data through EPA’s GHG Reporting Program. The 2010 GHG data includes publicly accessible information from sources in nine industry groups that directly emit large quantities of GHGs or supply certain fossil fuels. 

The GHG Reporting Program came as result of EPA’s October 2009 issuance of the Mandatory Reporting of GHG Rule (74 FR 56260).  The rule requires certain large sources and suppliers of products that would emit GHGs if released or combusted to report their GHG data and other relevant information starting in 2010.  EPA’s online data publication tool allows the public to review the GHG data in multiple ways including by facility, industry, location or gas. 

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Green Building in Practice: A Success Story

Green Building

Greenberg Glusker client, Structure Home, in partnership with Green Builder Media and others, is well underway in its development of VISION House Los Angeles.  Among the first of its kind in the Los Angeles area, this single family residence is located in the Pacific Palisades community of Los Angeles.  The goal of this project is to raise awareness, educate and advocate green building within our community.  This project will be featured in an upcoming edition of Green Builder Magazine.

Not only will this project comply with the mandatory requirements of California Green Building Standards Code (as known as CALGreen), which went into effect as of January 1, 2011, this project will also comply with the Tier 1 discretionary measures and is also on track to accomplish LEED Certification, California ENERGY STAR Certification, and California Home Energy Efficiency Rating System (CHEERS) Verification, among other certifications and verifications.  For all of the talk in recent memory about the need to go “green” and preserve our natural resources from local citizens all the way to President Obama, Structure Home is actually making it happen.

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Cabazon Band of Mission Indians Agrees to Air Quality Rules

Air Quality

In a landmark agreement, the South Coast Air Quality Management District (SCAQMD) reached a “government-to-government” agreement with the Cabazon Band of Mission Indians to enforce some of the SCAQMD’s air quality regulations on tribal land. 

The SCAQMD is the air pollution control agency for all of Orange County and the urban portions of Los Angeles, Riverside and San Bernardino Counties, but does not have jurisdiction over tribal lands. Under the agreement announced yesterday, the tribe has voluntarily agreed to allow the SCAQMD inspectors to conduct air sampling, monitoring and inspection activities on the 640-acre Cabazon Resource Recovery Park industrial park near Mecca. It also requires facilities operating within the park, including Western Environmental Inc., to comply with applicable SCAQMD rules. The agreement will also allow the SCAQMD to enforce permits issued by the U.S. Environmental Protection Agency to facilities operating within the park.

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Sackett v. EPA – Supreme Court to Decide Whether Pre-Enforcement Review of Compliance Orders Allowed

Environmental Litigation

On Monday, the United States Supreme Court heard oral argument on Sackett v. Environmental Protection Agency (docket no. 10-1062).  At issue is whether a party who was issued a pre-enforcement compliance order from the Environmental Protection Agency (EPA) has the right to have the order judicially reviewed before EPA initiates an enforcement action. 

The Sacketts own about a half-acre vacant parcel of land in Idaho.  In early 2007, they filled the parcel with dirt and rock in preparation for building a house.  Later that year, EPA issued an administrative compliance order against the Sacketts alleging that the parcel of land is a wetland subject to the Clean Water Act (CWA) and that the Sacketts violated the CWA by filling in the land without obtaining a permit.  EPA ordered the Sacketts to return the land to its former condition or face over $30,000 in penalties per day for failure to comply. 

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Environmental Groups Bring Suit Against EPA to Require Air Monitoring Along So-Cal Freeways

Air Quality

On Tuesday, the Natural Resources Defense Counsel (NRDC), Physicians for Social Responsibility-Los Angeles and Communities for a Better Environment brought a suit against the Environmental Protection Agency (EPA) for EPA’s approval of the South Coast Air Quality Management District’s (SCAQMD) 2011 Annual Air Quality Monitoring Network Plan on November 1, 2011 (the Air Monitoring Plan). 

The SCAQMD is the air pollution control agency for all of Orange County and the urban portions of Los Angeles, Riverside and San Bernardino Counties.  The Air Monitoring Plan describes the network of ambient air quality monitors within the SCAQMD’s jurisdiction (click here for the final plan).  Federal law requires EPA to review the Air Monitoring Plan annually to identify the need to make any changes to the air monitoring requirements. 

Although the environmental groups’ opening brief is not due until the end of March, according to NRDC’s press release, the focus of the suit will be that EPA violated the Clean Air Act by approving the Air Monitoring Plan even though it does not require air quality monitoring along Southern California freeways.  NRDC contends that such monitoring is necessary to “better inform the local air district about the hazardous levels of particulate air pollution, and to arm them with the information necessary to take action to protect the region’s residents.”  The environmental groups are seeking the installation of air monitors along the region’s highways.

Life in the Green Lane – Carpool Privileges to be Given to Qualifying Cars

Clean Technology

At the start of the year, California began offering green clean air vehicle decals to purchasers or lessees of cars meeting California’s Enhanced Advanced Partial Zero Emission Vehicle requirements.  These decals enable a single driver to drive in the carpool lane.

California is limiting the number of stickers to 40,000.  The program will last through January 2015.  Ironically, as reported by the Sacramento Bee, there are currently no commercially available cars that meet the criteria to obtain the decal.  However, the 2012 Toyota Prius plug-in hybrid and the 2012 Chevy Volt are expected to qualify.

Quebec Joins California In Adopting a Cap-and-Trade Program

Climate Change

As our readers know, we have been following the cap-and-trade regulations both domestically and abroadQuebec recently joined California in adopting a cap-and-trade regulation for greenhouse gas (GHG) emission allowances based on the rules established by the Western Climate Initiative (WCI). WCI is a collaboration of independent jurisdictions, including California, working together to “identify, evaluate and implement emissions trading policies to tackle climate change at a regional level.” Quebec joined WCI in April 2008. 

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