Supreme Court Rejects National Homebuilders Effort to Pollute

Washington, D.C. —

The U.S. Supreme Court today rejected an effort by the National Association of Home Builders (NAHB) seeking to invalidate a landmark regulation in California’s San Joaquin Valley to reduce air pollution from new development projects.

A view from Sequoia and Kings Canyon National Parks shows a thick layer of air pollution above the San Joaquin Valley. (Richard Cain / NPS)

The regulation, known as the Indirect Source Rule (ISR) was adopted by the San Joaquin Valley Unified Air Pollution Control District in December 2005 and took effect in March 2006. It requires developers to mitigate pollution from the increased traffic generated by new development. Developers can either incorporate into their projects elements that will minimize these traffic-related emissions such as building near public transit, adding bicycle lanes, or building walkable shopping into the plans, or pay a mitigation fee to the district to be used to purchase off-site emission reductions.

“We were glad to stand with the San Joaquin air district to defend this rule,” said Paul Cort an attorney for Earthjustice who participated in the litigation of the issue in the lower courts and filed an opposition to the Homebuilders petition for Supreme Court review. “No special interest should have a free ride in a region where schools and parents are frequently warned to keep children indoors on bad air days.”

On June 6, 2007, the National Association of Home Builders filed a challenge in federal district court seeking to invalidate the rule, claiming that only the federal government can regulate these activities. The court rejected the Homebuilders’ challenges, finding the indirect source rule an appropriate exercise by the District to address air pollution under the federal Clean Air Act.

The NAHB appealed the decision to the Ninth Circuit Court of Appeals. On December 7, 2010, the Court rejected the appeal and upheld the District Court decision. On June 16, 2011, NAHB petitioned for review in the Supreme Court.

“The Supreme Court’s action supports this common sense regulation to clean up the air in one of the most polluted areas in the country,” said Timothy O’Connor of the Environmental Defense Fund. “Now the trade associations will have to follow the lead of the hundreds of California developers who have complied with this pollution-cutting measure.”

Gordon Nipp of the Sierra Club’s Bakersfield chapter said, “Every sector must do its part to help clean up our air in the San Joaquin Valley, some of the worst in the nation. Agriculture is learning to comply with the federal Clean Air Act, and now the homebuilders will join the fight against air pollution, despite their past legal recalcitrance.”

Earthjustice represented Environmental Defense Fund and the Kern-Kaweah (Bakersfield), Tehipite (Fresno), and Mother Lode (Sacramento) Chapters of the Sierra Club in the lower court litigation.