Clean Air Constituency v. California State Air Resources Bd.

• Decision Date: 27 June 1974
• Docket Number: S.F. 23093
• Citation: 523 P.2d 617,114 Cal.Rptr. 577,11 Cal.3d 801
• Court: California Supreme Court
• Parties: , 523 P.2d 617, 6 ERC 1945 CLEAN AIR CONSTITUENCY et al. Petitioners, v. CALIFORNIA STATE AIR RESOURCES BOARD, Respondent. In Bank

Page 577

114 Cal.Rptr. 577

11 Cal.3d 801, 523 P.2d 617, 6 ERC 1945

CLEAN AIR CONSTITUENCY et al. Petitioners, v. CALIFORNIA STATE AIR RESOURCES BOARD, Respondent.

S.F. 23093.

Supreme Court of California,

In Bank.

June 27, 1974.

Mary D. Nichols, Paul, Hastings, Janofsky & Walker, Dennis H. Vaughn, Donald A. Daucher, Munger, Tolles, Hills & Rickershauser, Los Angeles, and Dennis C. Brown, Huntington Beach, for petitioners.

Evelle J. Younger, Atty. Gen., Carl Boronkay, Asst. Atty. Gen., Jeffrey C. Freedman and Alan Robert Block, Deputy Attys. Gen., for respondent.

MOSK, Justice.

This is a proceeding for an original writ of mandate brought against the California State Air Resources Board (hereinafter ARB) by an association of individuals and groups concerned with implementing clean air legislation, together with two manufacturers of pollution control devices and a private citizen residing in Los Angeles County.

The issue is whether the ARB has authority to delay its oxides of nitrogen pollution control program for the stated reason of conserving gasoline during the energy crisis. Initially, we are called upon to determine whether this court may assume original jurisdiction in mandamus under article VI, section 10, of the California Constitution. If jurisdiction exists, we must consider whether the Legislature has conferred discretionary authority upon the ARB to delay the program for the control of atmospheric emissions of oxides of nitrogen (hereinafter NOx) and, if such discretion exists, whether the ARB may exercise this discretion to help alleviate the energy crisis. We examine those sections of the Health and Safety Code and related statutes which authorize the ARB to administer a statewide program to equip 1966 through 1970 model year vehicles (hereinafter the subject vehicles) with devices to control vehicular emissions of NOx (Health & Saf.Code, §§ 39107.6, 39177.1--39177.4; Veh.Code, § 4602, hereinafter NOx legislation).

For the reasons discussed infra we hold that this court is entitled to exercise original jurisdiction in mandamus under article VI, section 10, of the California Constitution; that the ARB has limited discretionary authority to delay the NOx program; but that it has no authority to delay this program for reasons related to the energy crisis. Accordingly, petitioners are entitled to a peremptory writ vacating the ARB's action to delay the installation programs and ordering the ARB to implement and enforce the NOx installation program in the manner directed by statute.

In 1971, the Legislature amended the Mulford-Carrell Air Resources Act (Stats.1967, ch. 1545, p. 3680) to require the ARB to set standards for devices which would significantly reduce the emission of NOx from the exhaust of certain 1966 through 1970 model year vehicles and to establish a program for the installation of pollution control devices. (Health & Saf.Code, § 39107.6.) Generally, this amendment (Stats.1971, ch. 1507, p. 2978) provides for the installation of NOx control devices in every subject vehicle and empowers the ARB to establish by regulation a schedule of installation. (Health & Saf.Code, § 39177.1.) The legislation states that certificates of compliance shall be required upon initial registration and transfer of ownership of subject vehicles (Health & Saf.Code, § 39177.1, subd. (b)(2)), and shall be required for all subject vehicles upon renewal of registration in 1973 (Health & Saf.Code, § 39177.1, subd. (b)(3)). In addition, the NOx legislation authorizes the ARB to delay the latter requirement 'for extraordinary and compelling reasons only'; in such event, the ARB may adjust its schedule of installation but must immediately report to the Governor and the Legislature. (Veh.Code, § 4602, subd. (b).)

After an initial delay caused by a shortage of mechanics and pollution control devices, the ARB established its first schedules for the installation program. One schedule, corresponding to the certificate provision of section 39177.1, subdivision (b)(2), required the mandatory installation of NOx devices upon the transfer of ownership and initial registration of subject vehicles. The dates on which this requirement would take effect depended upon geographical area and ranged from February 1 to June 1, 1973.

In addition to the geographical schedule, the ARB adopted a schedule for the installation of devices based on the last arabic number on the license plates of subject vehicles. By this schedule, the ARB required all owners of subject vehicles to install pollution control devices between the dates of June 1973 and April 1974. This schedule facilitated the section 39177.1, subdivision (b) (3), requirement for certificates upon renewal of registration. Although the code section required certificates of compliance upon renewal of registration for the year 1973, the ARB delayed the certificate requirement under the 'extraordinary and compelling reasons only' clause of Vehicle Code section 4602 until renewal of registration for the year 1975. Apparently, this date was intended to correspond to the declared California goal of pure air with no significant adverse effect from motor vehicle air pollution by 1975. (Health & Saf.Code, § 39081, subd. (d), added by the Pure Air Act of 1968, Stats.1968, ch. 764, § 8, p. 1467.)

In June 1973 the ARB again deferred the installation program. The board had received data which indicated that some devices might cause engine damage. Consequently, the ARB suspended the announced installation schedules pending a reconsideration of its decision to accredit some NOx devices. (See Cal.Admin.Code, tit. 13, § 2002(a).) Shortly thereafter, however, the ARB adopted new schedules which would have required the installation of NOx devices by the end of 1974.

On December 19, 1973, the ARB voted for a third time to delay the installation program. (Resolution No. 73--27G.) The ARB justified this action on a theory that the energy crisis presented an extraordinary and compelling reason for further delay. Accordingly, it resolved to postpone the installation program based on the license plate schedule by one year and to defer the installation of devices upon initial registration and transfer of ownership (the geographical schedule) from January 1, 1974, to April 1, 1974. ¹ In accordance with the one-year delay of the license plate schedule, the ARB deferred the requirement of certificates of compliance upon renewal of registration from 1975 to 1976. The effect of the new geographical schedule was to postpone the installation requirement upon initial registration and upon transfer of ownership in rural areas by three months. ²

According to the ARB's staff report, this delay will result in the emission of an additional 100 tons of NOx per day from 1966--1970 model year vehicles in 1974 and 30 tons per day in 1975. In contrast to these statistics, the resolution will prevent an increase in gasoline consumption of approximately .5 percent in 1974 and .13 percent in 1975.

The Writ of Mandate

The Supreme Court has original jurisdiction in mandamus pursuant to article VI, section 10, of the California Constitution, and will exercise that jurisdiction in appropriate cases when 'the issues presented are of great public importance and must be resolved promptly.' (County of Sacramento v. Hickman (1967) 66 Cal.2d 841, 845, 59 Cal.Rptr. 609, 611, 428 P.2d 593, 595; Mooney v. Pickett (1971) 4 Cal.3d 669, 675, 94 Cal.Rptr. 279, 483 P.2d 1231.) If these criteria are satisfied, the existence of an alternative appellate remedy will not preclude this court's original jurisdiction. (Cal.Civil Writs (Cont.Ed.Bar 1970) § 5.39, p. 91; see Acton v. Henderson (1957) 150 Cal.App.2d 1, 7, 309 P.2d 481.)

The present case presents a question of great public importance which must be resolved promptly: whether the ARB has authority to delay the NOx program because of the energy crisis. If this program is delayed pursuant to the ARB's resolution and emergency regulations, the result will be the production of an additional 100 tons of NOx per day to pollute the air of California.

The Legislature has underscored the public significance of the pollution control device program. In the urgency section of the NOx act, the Legislature declared that the 1966 through 1970 vehicles do not eliminate enough of the oxides of nitrogen to insure the health and safety of the majority of California's citizens. Because oxides of nitrogen are 'dangerous substances,' the Legislature declared its desire that 'such devices (be) installed on most of such passenger vehicles within the shortest time possible.' (Stats.1971, ch. 1507, § 8, p. 2981.)

Finally, the new delay may cause the emergence of an inadequate supply of interested manufacturers and devices when and if the program resumes. According to the declarations of several accredited device manufacturers who are plaintiffs in this action, they will lose substantially all their investments in the NOx device program if the program is delayed. Suppliers of component parts for these devices and distributors of the finished product are alleged to be experiencing similar difficulties. Consequently, their continued participation in the program is seriously endangered. ³

The writ of mandate is appropriate to review the actions of the ARB. The courts may rely upon mandamus under Code of Civil Procedure section 1085 to review the validity of a quasi-legislative action. (Cal.Civil Writs (Cont.Ed.Bar 1970) § 5.37, p. 89.) If an administrative agency has exceeded its authority in the exercise of its quasi-legislative powers, a court may issue a writ of mandate. (See Griffin v. Board of Supervisors (1963) 60 Cal.2d 318, 33 Cal.Rptr. 101, 384 P.2d 421; Manjares v. Newton (1966) 64 Cal.2d 365, 49 Cal.Rptr. 805, 411 P.2d 901.)

Discretionary Authority to Delay the NOx Program

On three occasions, the ARB has assumed discretionary authority to delay the NOx pollution control device program...