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Appeals Court Sides With San Joaquin Clean Air Advocates

Victory: Innovative air pollution rule means no free ride for developers
December 9, 2010
San Francisco, CA —

A coalition of clean air advocates and conservation groups today hailed a ruling from the U.S. Court of Appeals for the Ninth Circuit that upholds an air pollution rule requiring San Joaquin Valley builders to mitigate air pollution associated with new housing projects and other large developments.

The Ninth Circuit upheld a lower court decision that the San Joaquin Valley Air Pollution Control District rule is legal. Builders unsuccessfully sought to overturn the rule, which requires them to compensate for indirect pollution such as smog caused by traffic increases from large new developments.

“The court agreed that federal law gives states and local air agencies the power to address pollution caused by sprawl,” said Earthjustice attorney Paul Cort, who represented the coalition of clean air advocates and conservation groups. “This decision will help not only in the San Joaquin Valley, but will also empower other areas to follow suit.”

The National Association of Home Builders filed a challenge in federal district court in June 2007 seeking to invalidate the rule, claiming that only the federal government can regulate these activities. In 2008, the district court upheld the rule and the Home Builders appealed to the Ninth Circuit Federal Court of Appeals.

The coalition intervened in these court cases on behalf of the air district to defend the innovative air pollution rule.

At issue is the San Joaquin Valley Air District’s rule entitled "Indirect Source Review," which requires developers to mitigate pollution from the increased traffic generated by new development. Developers can either incorporate into their projects elements that will minimize construction and traffic-related emissions such as using cleaner construction equipment, building near public transit, adding bicycle lanes, or building walkable shopping into the project—or pay a mitigation fee to the air district to be used to purchase off-site emission reductions.

“The indirect source rule is the first effective, enforceable regional regulation that makes builders accountable for the transportation air pollution consequences of the design of their proposed developments in terms of the likely traffic generation,” said Jim Tripp, Senior Counsel at the Environmental Defense Fund. “This decision has transformed the rule from a regional initiative unique to California into a national model.”

The intervention is unusual for environmental and public health groups that have recently filed and settled numerous lawsuits to force the air district to do a better job of protecting public health.

Earthjustice is representing Environmental Defense and the Kern-Kaweah (Bakersfield), Tehipite (Fresno), and Motherlode (Sacramento) Chapters of the Sierra Club in the intervention.

A copy of the ruling by the U.S. Court of Appeals for the Ninth Circuit can be obtained at: http://www.ca9.uscourts.gov/datastore/opinions/2010/12/07/08-17309.pdf

Contacts

Paul Cort, Earthjustice, (510) 550-6777

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