Cal. Cmty. Against Toxics v. S. Coast Air Quality Mgmt. Dist.

• Decision Date: 19 July 2011
• Docket Number: B226692
• Parties: CALIFORNIA COMMUNITIES AGAINST TOXICS et al., Plaintiffs and Appellants, v. SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

CALIFORNIA COMMUNITIES AGAINST TOXICS et al., Plaintiffs and Appellants, v. SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT et al., Defendants and Respondents.

B226692

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

Dated: July 19, 2011

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BS124264)

APPEAL from a judgment of the Superior Court of Los Angeles County. James C. Chalfant, Judge. Affirmed.

Law Offices of Angela Johnson Meszaros, Angela Johnson Meszaros and Timothy R. Grabiel for Plaintiffs and Appellants California Communities Against Toxics and Coalition for a Safe Environment.

Communities for a Better Environment, Shana Lazerow and Adrienne L. Bloch for Plaintiffs and Appellants Communities for a Better Environment.

South Coast Air Quality Management District, Kurt R. Wiese, Barbara Baird; Bingham McCutchen, Barbara J. Schussman, Rick R. Rothman, Stephen L. Kostka; Perkins Coie, Barbara J. Schussman, Stephen L. Kostka and Marie A. Cooper, for Defendant and Respondent South Coast Air Quality Management District.

California Energy Commission, Michael J. Levy and Robin M. Mayer for Defendant and Respondent Energy Resources Conservation and Development Commission.

Frank G. Wells Environmental Law Clinic and Sean B. Hecht as Amicus Curiae on behalf of Center for Biological Diversity, Endangered Habitats League, and Environmental Defense Center.

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Plaintiffs and appellants California Communities Against Toxics, Communities for a Better Environment and Coalition for a Safe Environment appeal following a judgment on the pleadings granted in favor of defendants and respondents the South Coast Air Quality Management District (District) and the Energy Resources Conservation and Development Commission (Energy Commission) on claims that the enactment of two statutes enabling the District to issue certain permits for a limited time period violated the principle of separation of powers and failed to comply with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA).

We affirm. The legislation did not violate the separation of powers doctrine, as it acted prospectively to abrogate the effect of a judicial decision. Further, legislative intent as reflected by the statutory language and legislative history establishes that the statutes cannot be reasonably construed to require CEQA review. Finally, we find no basis to dismiss the appeal against the Energy Commission.

FACTUAL AND PROCEDURAL BACKGROUND

Applicable Regulatory Scheme.

The federal Clean Air Act (42 U.S.C. §§ 7401-7671) provides a comprehensive regulatory scheme for the reduction and prevention of air pollution by both the states and the federal government. (See generally Natural Resources Defense Council, Inc. v. South Coast Air Quality Management Dist. (C.D. Cal. 2010) 694 F.Supp.2d 1092, 1096 (Natural Resources)?) The purpose of the scheme is to achieve and maintain compliancewith the Environmental Protection Agency's (EPA) National Ambient Air Quality Standards (NAAQS). (Ibid.) Each state is divided into separate "air quality control regions" which are designated as "attainment" or "nonattainment" depending on whether the region meets the NAAQS for specified pollutants. (42 U.S.C. §§ 7407, subd. (d), 7501, subd. (2); 40 C.F.R. § 81, subd. (C).) The "EPA has designated the 'South Coast Air Basin' . . . as an air quality region under the Act. It consists of the urban portions of Los Angeles, Riverside, and San Bernardino Counties, and all of Orange County. [Citation.] The South Coast Basin is currently in attainment for nitrogen dioxide, sulfur dioxide, lead and carbon monoxide. [Citation.] Because of its large population and unique meteorology, however, the Basin is currently nonattainment for ozone and particulate matter . . . . [Citation.]" (Natural Resources, supra, 694 F.Supp.2d at p. 1098, fn. omitted.)

"The NAAQS are maintained in part through 'State Implementation Plans' or 'SIPs.' [Citation.] SIPs contain specific control measures that are designed to achieve compliance with the NAAQS within the designated air quality control regions." (Natural Resources, supra, 694 F.Supp.2d at p. 1096; see also Latino Issues Forum v. U.S. E.P.A. (9th Cir. 2009) 558 F.3d 936, 938.) States must prepare and submit each proposed "State Implementation Plan" (SIP) to the EPA for review and approval; once approved, a SIP has the force and effect of federal law. (Natural Resources, supra, at p. 1096.) While the Clean Air Act dictates a number of general requirements for the content of a SIP, states maintain substantial discretion to establish specific air pollution control strategies to achieve compliance with the NAAQS. (Ibid.) Notwithstanding this discretion, a SIP for a nonattainment area must contain a "new source review" (NSR) program outlining permit requirements for new or modified major sources of nonattainment emissions. (Id. at p. 1097.) One aspect of NSR is the requirement that "a nonattainment area SIP must require that emission increases from new and modified major sources be offset by corresponding emissions reductions." (Ibid.; see 42 U.S.C. § 7503(c).) "An 'offset' is a reduction of nonattainment pollutant emissions in an amount equal to, or somewhat greater than, the emissions increase of the same pollutant from the proposed new ormodified stationary source or equipment. [Citation.] A company might be allowed to create offsets, for example, by permanently shutting down a permitted piece of equipment, or curtailing production or operating hours. [Citation.] Once created, companies may also be able to 'bank' offsets, use them at a later time, and/or sell them to other companies." (Natural Resources, supra, at p. 1097.)

The District is responsible for preparing and implementing the SIP for the South Coast Air Basin. (Natural Resources, supra, 694 F.Supp.2d at p. 1098; Health & Saf. Code, § 40460.) In large part, the South Coast Air Basin SIP—also known as an air quality management plan (AQMP)—consists of the District's adopted Rules that have been approved by the EPA as part of the SIP. (Natural Resources, supra, at p. 1098 & fn. 8; see 61 Fed. Reg. 64291) Because the South Coast Air Basin is nonattainment for certain pollutants, the SIP contains an NSR program, codified as Regulation XIII and approved by the EPA.¹ (Natural Resources, supra, at p. 1099.) The goal of Regulation XIII is "to 'achieve no net increases from new or modified permitted sources of nonattainment air contaminants or their precursors.'" (Ibid.) To implement this goal, Regulation XIII provides preconstruction review requirements for new and modified nonattainment emission sources that are triggered by a permit application before the District. (Ibid.)

Specifically, Rule 1303 provides that, except to the extent Rule 1304 applies, a permit for a new or modified source that results in a net emission increase of a nonattainment air pollutant must be denied unless several requirements are met, including one relating to emission offsets. Relevant here, Rule 1303(b)(2)(A) provides that theemission offset requirement may be satisfied in two different ways: "Unless exempt from offset requirements pursuant to Rule 1304, emission increases shall be offset by either Emission Reduction Credits approved pursuant to Rule 1309, or by allocations from the Priority Reserve in accordance with the provisions of Rule 1309.1." (Natural Resources, supra, 694 F.Supp. at p. 1099.)

Rule 1309 addresses the "application, eligibility, registration, use, and transfer of Emission Reduction Credits" (ERCs) referenced in Rule 1303(b)(2). (Rule 1309; see Natural Resources, supra, 694 F.Supp.2d at p. 1101.) As explained in Natural Resources at page 1099, an offset is created pursuant to Rule 1309 "when a private company applies to [the District] to convert emission reductions into marketable 'emission reduction credits' ('ERCs'). [Citation.] Upon approval of an application under Rule 1309(c), the ERCs are registered in the applicant's name. [Citation.] The ERCs then become a marketable commodity that can be used, banked, or sold. [Citations.]" Rule 1309(b) sets forth both the eligibility requirements for emissions reductions an applicant seeks to convert into ERCs and the requirements for issuing ERCs to private applicants. (Natural Resources, supra, at p. 1099 & fn. 11.)

The second type of offset recognized in Rule 1303(b)(2) involves allocations from the Priority Reserve established by Rule 1309.1. (Natural Resources, supra, 694 F.Supp.2d at p. 1099.) That rule is designed to provide offset credits for certain specified "priority sources," including innovative technology, research operations, essential public services and certain types of electrical generating facilities. (Rule 1309.1(a).)

Rule 1304 provides an exemption from both offset requirements for several categories of sources including those with low emissions, that reduce emissions or that provide some other environmental benefit. (Natural Resources, supra, 694 F.Supp.2d at p. 1100.) Examples include sources that are used exclusively as emergency equipment and not operated for more than a specified time period; certain types of portable equipment; facility modifications that are required for regulatory compliance; and energy conservation projects. (Rule 1304.) Because the Clean Air Act does not independently exempt those sources from the offset requirement, the District "provides offsets for thesesources from its internal bank when issuing permits for those projects." (Natural Resources, supra, at p. 1100.)

Offset credits from the District's internal bank are utilized...