Western Oil & Gas Assn. v. Air Resources Board

• Decision Date: 17 December 1984
• Citation: 37 Cal.3d 502,691 P.2d 606,208 Cal.Rptr. 850
• Court: California Supreme Court
• Parties: , 691 P.2d 606, 22 ERC 1178 WESTERN OIL AND GAS ASSOCIATION et al., Plaintiffs and Respondents, v. AIR RESOURCES BOARD et al., Defendants and Appellants. L.A. 31585.

Page 850

208 Cal.Rptr. 850

37 Cal.3d 502, 691 P.2d 606, 22 ERC 1178

WESTERN OIL AND GAS ASSOCIATION et al., Plaintiffs and Respondents, v. AIR RESOURCES BOARD et al., Defendants and Appellants.

L.A. 31585.

Supreme Court of California,

In Bank.

Dec. 17, 1984.

George Deukmejian, Atty. Gen., R.H. Connett, Asst. Atty. Gen., and Joel S. Moskowitz, Deputy Atty. Gen., for defendants and appellants.

John F. Powell, Richard W. Grieves, Laurence G. Chaset, San Francisco, Joseph J. Brecher, Oakland, Nicholas C. Arguimbau, Michael D. Mason, Abby Ginzberg, San Francisco, Carlyle W. Hall, Jr., Sacramento, and Michael S. Gendler, Los Angeles, as amici curiae on behalf of defendants and appellants.

McCutchen, Black, Verleger & Shea, Philip K. Verleger, Jack D. Fudge, Gregory R. McClintock and Michael L. Hickok, Los Angeles, for plaintiffs and respondents.

Ronald A. Zumbrun, John H. Findley and Anthony T. Caso, Sacramento, as amici curiae on behalf of plaintiffs and respondents.

GRODIN, Justice.

This case presents issues of first impression under the Mulford-Carrell Air Resources Act (Health & Saf.Code, § 39000 et seq.) which created the State Air Resources Board (Board) and directed it to adopt standards of ambient air quality "for each air basin in consideration of the public health, safety, and welfare, including, but not limited to, health, illness, irritation to the senses, aesthetic value, interference with visibility, and effects on the economy." ( § 39606, subd. (b).) ¹ Standards relating to health effects are required to be "based upon the recommendations of the [health department]." (Ibid.) ² Nine oil companies and two of their trade associations (plaintiffs) brought this action, contending that certain standards established by Board regulations were invalid because the standards were not based upon the health department's recommendations as the statute requires, the Board refused to consider the economic effects of the regulations, the standards lacked evidentiary support, and the manner of their adoption denied plaintiffs due process of law. The trial court, agreeing with these contentions, found the regulations invalid, and the Board has appealed from the ensuing judgment.

We have reached the following conclusions: The Board, which lacked medical expertise in its membership, was not authorized to reject health department recommendations as to the health effects of air pollution. However, while the Board was required to consider the department's recommendations as to health effects, it was The Legislature has not required the Board, in setting ambient air quality standards, to consider the effects of those standards on the economy. The economic consequences of air quality control regulation, including the impact of such regulation upon the jobs of employees in regulated industries, are indeed important and must be taken into account. It appears, however, that the Legislature intended that this responsibility should lie with the local and regional enforcement authorities, rather than the state Board. Therefore, the trial court's conclusion that the Board violated its statutory mandate in refusing to consider evidence of the potential economic effects of its proposed regulations was erroneous. Furthermore, substantial evidence supported the standards adopted, and the procedures followed were fair. Accordingly, we reverse the judgment of the trial court.

[691 P.2d 608] not required to adopt the department's recommended air pollution levels as California's ambient air quality standards. The Board must evaluate a number of additional factors in establishing its standards, and, because of the grave health risks posed by air pollution, the Board may incorporate "margins of safety" and thus adopt air standards higher than those recommended by the health department. In light of these considerations, the record does not establish that the Board rejected the department's recommendations here.

I. PROCEDURAL HISTORY, STATUTORY BACKGROUND, AND JUDICIAL REVIEW IN GENERAL

The Board is mandated by statute to adopt standards of ambient air quality. Two separate proceedings, adopting standards for sulfates and for sulfur dioxide, are at issue here.

The Board adopted the challenged sulfates standard, of 25 micrograms of sulfates per cubic meter of air, at the conclusion of a public hearing in February 1976. The Board adopted the sulfur dioxide standard in June 1977 after a public hearing held in April. This standard was modified, in respects not here material, in October 1977. The Board adopted a "combination" standard of 0.05 parts per million (ppm) sulfur dioxide in the presence of oxidant (ozone) in excess of the state standard for oxidant; or in combination with suspended particulate matter in excess of the state standard for particulates. ³

In February 1978, nine oil companies and two trade associations filed a complaint challenging these standards. As ultimately amended, the complaint sought writs of mandate commanding the Board to rescind its resolutions adopting the standards.

By stipulation of the parties, oral argument was held before retired Judge Eugene E. Sax, acting as judge pro tempore of Los Angeles County Superior Court. Judge Sax decided in favor of the oil companies and ordered the issuance of the requested writs of mandate in December 1980.

The Board appeals from this judgment.

The Board was established by the Mulford-Carrell Air Resources Act. (Stats.1967, ch. 1545, p. 3680.) In adopting the act, the Legislature manifested its determination to mobilize our state resources to establish an intensive and coordinated effort to combat the problems of air pollution. In the declaration of policy which prefaces the act's substantive provisions, the Legislature asserted the "physical environment is being degraded by the waste and refuse of civilization polluting the atmosphere, thereby creating a situation At the time of the proceedings at issue in this case, the statute provided for a Board composed of five members, two with training and experience in automotive engineering or closely related fields, two with training and experience in chemistry, meteorolgy, or related scientific fields, including agriculture, or law, and one member who qualified under the above requirements or had administrative experience in the field of air pollution control. (Former § 39510.) ⁴

                which is detrimental to the health, safety, welfare, and sense of well-being of the people of California."  (Former § 39010;  present § 39000.)   The Legislature further declared:  "It is necessary to provide a means for an intensive coordinated state, regional, and local effort to combat the problems of air pollution within the various air basins in the state ... and to provide for state authority to establish ambient air quality standards that could vary from basin to basin ...."  (Former § 39011;  cf. present § 39001.)   And, "[i]t is imperative to provide a single state agency for [37 Cal.3d 509] administration, research, establishment of standards, and the coordination of air conservation activities carried on within the state."  (Former § 39013.)
                

The statutes direct the Board to divide the state into air basins and to "[a]dopt standards of ambient air quality for each air basin in consideration of the public health, safety, and welfare, including, but not limited to, health, illness, irritation to the senses, aesthetic value, interference with visibility, and effects on the economy. These standards may vary from one air basin to another. Standards relating to health effects shall be based upon the recommendations of the [health department]." ( § 39606, subd. (b).)

It is the duty of local and regional air quality districts to promulgate and implement rules and regulations reasonably assuring achievement and maintenance of the state standards. ( §§ 40000-40002; Stauffer Chemical Co. v. Air Resources Board (1982) 128 Cal.App.3d 789, 792-793, 180 Cal.Rptr. 550.)

The proceedings of the Board are quasi-legislative in nature, and the courts exercise limited review out of deference to separation of powers between the Legislature and the judiciary, and to the presumed expertise of the agency within the scope of its authority. A reviewing court will determine whether the agency acted within the scope of its delegated authority, whether it employed fair procedures, and whether its action is arbitrary, capricious, or lacking in evidentiary support. (Industrial Welfare Com. v. Superior Court (1980) 27 Cal.3d 690, 702, 166 Cal.Rptr. 331, 613 P.2d 579, cert. den., 449 U.S. 1029, 101 S.Ct. 602, 66 L.Ed.2d 492; California Hotel & Motel Assn. v. Industrial Welfare Com. (1979) 25 Cal.3d 200, 212, 157 Cal.Rptr. 840, 599 P.2d 31.) A reviewing court will not substitute its policy judgment for the agency's in the absence of an arbitrary decision (ibid.), and in the absence of statutory requirement, the agency need not prepare findings in support of its legislative decision (Stauffer Chemical Co. v. Air Resources Board, supra, 128 Cal.App.3d 789, 794, 180 Cal.Rptr. 550).

II. THE DEPARTMENT OF HEALTH SERVICES RECOMMENDATIONS

In the proceeding to establish a standard for sulfates, the health department recommended and the Board adopted a standard of 25 micrograms of sulfate per cubic meter of air during a 24-hour period. In the sulfur dioxide proceeding, the health department recommended retention of the existing standard of .04 ppm of air for a 24-hour period. Instead the Board adopted a standard of .05 ppm for a 24-hour period in which there were elevated levels of oxidants or particulates.

The trial court concluded that the Board is statutorily required to base its standards upon the health department's recommendations. The court further concluded that, in both proceedings, the Board had failed to follow this statutory mandate. While we agree that section 39606 requires the Board to base its standards on health department recommendations, the...