Overview: Why have community and environmental groups resorted to litigation in order to clean up the air?

The federal Clean Air Act contemplates three lines of defense if air pollution control plans or measures are not being implemented.  First, the local air district and transportation planning organizations are charged with coming up with plans to control air pollution and then implementing those plans and specific control measures.  Next, the California Air Resources Board is required to ensure that such pollution control plans and measures are adequate.  If pollution control fails at that level, the federal Environmental Protection Agency is required to step in to bring enforcement actions as needed to compel implementation of plans and measures.  If even EPA fails to uphold and enforce the Clean Air Act, Section 304(a) of the Act provides a "last resort," authorizing citizens to stand in the shoes of the federal government to enforce the federal air quality law through the citizen lawsuit.

Over the years, many of the local agencies responsible for protecting our air quality, unwilling to take the tough measures necessary, have devised one inadequate plan after another in unsuccessful efforts to improve air quality.  Compounding the inadequacy of these plans has been the agencies' failure to implement them, and EPA's failure to force those agencies to do their jobs. When neither the local agency nor the EPA has fulfilled their duties under the Clean Air Act to ensure clean and healthy air, community groups have begun to successfully step in to enforce the laws themselves and each success can be logged as a victory for the breathing public.

SUMMARY OF SAN JOAQUIN VALLEY LEGAL ACTIONS

ACTION #1 - The Big Picture: Lawsuit vs. EPA
Medical Alliance for Healthy Air v. Whitman, No. 01-04086 CRB (N.D. Cal. 2001)
On November 1, 2001, Medical Advocates for Healthy Air, Sierra Club, Latino Issues Forum and Center on Race, Poverty & the Environment filed suit against EPA, listing multiple instances where EPA had violated the Clean Air Act by failing to act on rules and plans to control ozone and particulate matter emissions in the San Joaquin Valley. On January 15, 2002, parties entered into a consent decree, ordering EPA to: 1) reclassify the Valley from "serious" to "severe" for ozone non-attainment, triggering stricter pollution control requirements; 2) disapprove the District's rules exempting factory farms and existing pollution sources from new permitting requirements; 3) publish a final finding of the District's failure to submit a PM-10 plan, thereby starting a sanctions clock; 4) disapprove the Westside Exemption which effectively shielded all sources of air pollution west of Interstate 5 (mostly oil production facilities) that would otherwise be subject to these rules from federal and citizen enforcement; and 5) take action on two overdue particulate matter pollution rules.

ACTION #2 - Forcing the Air District to Follow Through on its Promises
Medical Alliance for Healthy Air v. SJVAPCD, No. F-01-6299 REC LJO (E.D. Cal. 2001)
Seeing that there were at least six ozone pollution control rules that the San Joaquin Valley Air District had promised to adopt but never did, Medical Advocates for Healthy Air, Sierra Club, Latino Issues Forum and Center on Race, Poverty & the Environment filed suit in October 2001. A settlement was quickly reached that set Court-ordered schedules for the Air District to act.

ACTION #3 – Title V: Big Agriculture Must Play by the Rules
Association of Irritated Residents v. EPA, No. 02-70160 (9th Cir. 2001), Medical Alliance for Healthy Air v. Whitman, No. 02-70177 (9th Cir. 2001), Communities for a Better Environment v. EPA, No. 02-70191 (9th Cir. 2001)
Sierra Club, Natural Resources Defense Council, Medical Advocates for Healthy Air, Association of Irritated Residents and Communities for Land, Air & Water sued EPA to force it to reverse its illegal action exempting all agricultural sources from any air pollution regulation under Title V of the CAA. On May 21, 2002, under obligations imposed by the resulting settlement agreement, EPA disapproved California’s Title V program. The settlement also required EPA to take over the Title V permitting program for agriculture sources unless the California state legislature removed the agricultural exemption from state law by November 2003. On September 19, 2003, California Governor Gray Davis signed Senate Bill 700 into law, thereby removing the exemption.

California Farm Bureau Federation v. EPA, No. 02-72263 (9th Cir. 2002), California Farm Bureau Federation v. EPA, No. 02-72413 (9th Cir. 2002), California Farm Bureau Federation v. EPA, No. 02-73371 (9th Cir. 2002): On July 22, 2002, the California Farm Bureau Federation filed a petition for review of the Notice of Deficiency for 34 Clean Air Act operating permit programs in California, an EPA action required by the settlement agreement. On July 30, 2002, the Farm Bureau filed a second petition for review to challenge the settlement agreement itself. The environmental and community groups from the original cases intervened on behalf of EPA in both Farm Bureau challenges to defend the integrity of the settlement agreement. On October 11, 2003 the Court dismissed the Farm Bureau petitions on the grounds that Farm Bureau lacked standing. On October 15, 2002, Farm Bureau launched a third unsuccessful attack on EPA’s withdrawal of approval of California’s Title V permit programs, and once again the groups intervened to ensure the EPA followed the law.

ACTION #4 – Defending EPA’s Disapproval of West-Side Exemption for Oil Industry
Western States Petroleum Association v. Whitman, No. 02-70949 (9th Cir. 2002)
As required by a settlement with environmental groups, on February 28, 2002, EPA disapproved the West Side Exemption included in four Valley rules designed to control emissions of nitrogen oxides ("NOx"). This exemption effectively shielded all sources of air pollution west of Interstate 5 in Kern, Kings, and Fresno Counties that would otherwise be subject to these rules from federal and citizen enforcement of the rules. These sources consisted mostly of oil production facilities. The Western States Petroleum Association challenged this disapproval on April 29, 2002. On July 25, 2002, Medical Advocates for Healthy Air, Sierra Club, Latino Issues Forum and Center on Race, Poverty & the Environment were granted permission to intervene in the challenge to help the federal agency defend its action. The environmental intervenors successfully supported EPA’s disapproval and the rules were recently re-proposed – this time without the West Side Exemption.

ACTION # 5 – EPA’s Obligation to Step In and Impose "Reasonably Available Control Measures" on Particulate Matter Sources in the Valley
Medical Advocates for Healthy Air v. Whitman, No. 02-5102 CRB (N.D. Cal. 2002)
On October 22, 2002, Medical Advocates for Healthy Air, Sierra Club and Latino Issues Forum filed a complaint against EPA for its failure to impose a long-overdue federal implementation plan (FIP) for particulate matter pollution in the Valley. These groups had uncovered through a FOIA request that EPA had formally found the District’s plan for attaining the national health-based standard for PM to be incomplete in 1991 – triggering a mandatory duty to impose highway and stationary source offset sanctions on the Valley and take over the local planning process to regulate PM pollution and impose "reasonably available control measures" by no later than December 17, 1993. Nearly a decade later, EPA had neither developed the plan nor imposed the sanctions. On March 5, 2003, the Court granted plaintiffs’ motion for summary judgment on liability, and soon after, the parties notified the court of a proposed consent decree that committed EPA to produce a plan that imposed the "best available control measures" on PM sources, measures even more aggressive than the "reasonably available control measures" the suit originally demanded.

ACTION # 6 – Regulation VIII
Medical Advocates for Healthy Air v. Whitman, No. 03-70454 (9th Cir. 2003), Association of Irritated Residents v. EPA, No. 03-71696 (9th Cir. 2003)
On January 22, 2003, EPA finalized "conditional approval and limited disapproval" of "Regulation VIII from EPA/Industry Discussions," a set of Valley rules to control fugitive dust, purported to constitute the cornerstone of the Valley’s strategy to control particulate matter. This new version was a result of of negotiations with industry stakeholders, leaving out members of the public and Valley Air District staff, resulting in a severely weakened form of the original regulation. On March 4, 2003, Latino Issues Forum, Medical Advocates for Healthy Air, Sierra Club and Association of Irritated Residents filed a Petition for Review challenging the "conditional approval" of this version on the basis that it failed to comply with federal Clean Air Act requirements.

Briefing on the merits concluded on October 22, 2003, after the Valley Air District had adopted revisions to the SIP. Under pressure from the lawsuit, EPA informed the District that it could not approve the state implementation plan (SIP) revisions unless the plan corrected the deficiencies in Regulation VIII. Accordingly, the District amended the SIP to include commitments to update Regulation VIII and EPA approved the SIP (with amendments) in full on May 26, 2004. Shortly before the final approval was published, EPA moved to dismiss the Regulation VIII case on mootness grounds, since the SIP committed to redress the substantive deficiencies of Regulation VIII. Though we opposed the motion because the actual rules had not yet been adopted, the court granted EPA’s motion. The Air District then amended the Regulation VIII rules in September 2004.

ACTION # 7 – Potential to Emit
Medical Advocates for Healthy Air v. EPA, No. 03-71971/03-71981 (9th Cir. 2003)
On May 13, 2003, Medical Advocates for Healthy Air, Our Children’s Earth Foundation, Sierra Club and Association of Irritated Residents filed suit challenging EPA’s implementation of a permitting program to regulate major agricultural sources of air pollution in California. EPA’s permit application for agricultural sources instructed these operations to "estimate their actual emissions" from diesel engines over the next year. However, the Clean Air Act specifically requires sources to determine the diesel engines’ "potential to emit" instead. The difference is that under EPA’s method, far fewer sources would have been considered "major sources" subject to permitting requirements under the Clean Air Act. In September 2003 plaintiffs entered into a settlement agreement in which EPA agreed to withdraw the illegal "potential to emit" guidance.

ACTION #8 – Forcing Disclosure of Effects of Extreme Reclassification
Association of Irritated Residents v. San Joaquin Valley Unified APCD, Case No. S-1500-CV-252128 KCT (Kern Co. Superior Court 2004)
In late 2003, and unable to meet a 2005 deadline to meet the health-based federal 1-hour ozone standard, the Air District took the unprecedented step of requesting a voluntary reclassification from a "severe ozone nonattainment area" to an "extreme ozone nonattainment area," extending the deadline by five years. The Association of Irritated Residents (AIR) filed suit in Kern County, alleging that the Air District had a duty to prepare an Environmental Impact Report as required by the California Environmental Quality Act (CEQA). The trial court ruled that the decision to reclassify was not subject to CEQA and refused to order the District to comply with CEQA. On appeal to the Fifth District Court of Appeals, the EPA revoked the 1-hour ozone standard, replacing it with the new 8-hour standard, and AIR was forced to acknowledge that the case had become moot.

ACTION #9 – Strengthening the Plan to Control Particulate Matter
Latino Issues Forum v. EPA, No. 04-72736, Association of Irritated Residents v. EPA, No. 04-72650 (9th Cir. 2004)
In June 2003, the District and the California Air Resources Board (ARB) approved a plan to clean up PM-10 after the District failed to meet the federal health-based standard by the December 31, 2001, deadline. The Association of Irritated Residents immediately filed a lawsuit in California state court challenging ARB's approval, with the hope of forcing plan amendments without delay. The Court ruled that AIR must wait to bring a legal challenge until EPA either approves or disapproves the plan.

Despite numerous legal and factual deficiencies, EPA approved the Air District’s 2003 plan to control PM air pollution in the Valley on April 29, 2004. On May 6, 2004, Latino Issues Forum, Medical Advocates for Healthy Air and Sierra Club filed suit in the Ninth Circuit Court of Appeals, challenging the plan’s numerous violations of Clean Air Act requirements. These violations included: 1) its illegal extension of the Valley’s attainment deadline to 2010, when every other "serious" PM nonattainment area in the country is required to attain by 2006; and 2) its failure to include adequate contingency measures to take effect in the event the Valley fails to make progress toward attainment. The Association of Irritated Residents also filed a challenge, arguing that the Plan failed to reduce PM-10 by at least 5% per year, illegally used reductions in the new PM-10 Plan that should have been in place by 1997, and failed to regulate ammonia, a PM-10 precursor. On September 6, 2005, the Ninth Circuit sided with EPA, deferring to the Bush Administration’s interpretation of Clean Air Act requirements and the scientific data underlying the plan.

ACTION #10 – More Broken Promises
Latino Issues Forum et al. v. SJVUAPCD, No. 05-CV-00607-OWW-DLB (E.D. Cal. 2005)
The District’s 2003 PM-10 Plan approved by EPA included nine key commitments to develop controls within one year of adopting the plan. One year later, only two of those commitments had been honored. On May 5, 2005, environmental groups and the Air District reached a settlement that ensured the adoption of four new air pollution control measures in the Valley to control particulate matter air pollution by the end of 2005. The District, recognizing its legal liability for failing to promulgate these rules by the deadlines required by its own plan and the federal Clean Air Act, agreed to be bound by a court-endorsed consent decree and adopted the emission rules.

ACTION # 11 – Contingency Measures
Medical Advocates for Healthy Air v. Johnson, et al., No. 06-00093 SBA (N.D. Cal. 2006)
Plaintiffs Medical Advocates for Healthy Air, Latino Issues Forum and Sierra Club challenged the 2003 PM-10 Plan in the Ninth Circuit (see Action #8) on several grounds, one of which addressed EPA’s failure to approve or disapprove the backstop control measures component of the District’s plan. The Clean Air Act requires that these "contingency measures" be in place such that they may be implemented automatically in the event the Plan is not successful in achieving the national standards and/or making the progress toward attainment that the Plan predicts. Since the Ninth Circuit decision, EPA has continued to delay action on the missing contingency measures because the District’s measures do not meet the Clean Air Act requirements. On January 9, 2006 the same plaintiffs filed suit against EPA in an effort to force EPA to evaluate the adequacy of the contingency measures and take the required actions. Briefing has not yet started.

ACTION #12 – Closing Loopholes: Forcing California to Reduce Pesticide-Related Smog
El Comité Para El Bienestar de Earlimart v. Warmerdam, No. S-04-0882 LKK KJM (E.D. Cal. 2004)
The 1994 Ozone State Implementation Plan (SIP), a smog clean up plan adopted pursuant to the federal Clean Air Act, contained a promise by the State to reduce smog-forming volatile organic compound (VOC)  emissions from pesticides by 20% from 1990 levels by 2005 in the San Joaquin Valley, the Sacramento, the Coachella Valley, the South Coast, and Ventura air basins. EPA approved the commitment to achieve the reductions using a strategy of voluntary controls and, if necessary, adopting regulations to ensure the 20% reduction. On May 4, 2004 -- with VOC emissions above 1990 levels in the San Joaquin Valley, the Coachella Valley, and Ventura County -- El Comité and Association of Irritated Residents, joined by three groups in Ventura County, filed suit to force California to honor its promises. On February 22, 2006, U.S. District Judge Lawrence Karlton ruled that the state violated its promise to adopt regulations by calculating emissions levels – in a manner inconsistent with the 1994 Ozone SIP – so that it appeared that “voluntary controls” met the targets.  See El Comité para el Bienestar de Earlimart v. Helliker, 416 F. Supp. 2d 912 (E.D. Cal. 2006).  The Court has since issued a remedy, requiring California to adopt regulations that will achieve a 20% reduction by January 1, 2008.  In the Valley, that equates to a reduction of 8 tons per day of VOC from current pesticide emission levels of 26 tons per day, the fourth largest source of smog-forming VOC in the Valley. Read the decision [PDF].

ACTION # 13 – Stopping the Dairy Invasion
Western United Dairymen, et al. v. SJVUAPCD, No. 04 CE CG 01596 (Fresno Co. Superior Court 2004), Association of Irritated Residents v. Fred Schakel Dairy, 1:05-cv-00707-AWI-SMS (E.D. Cal. 2005), Association of Irritated Residents v. C & R Vanderham Dairy, No. 1:05-CV-01593-AWI-SMS (E.D. Cal. 2005)
SB 700 became effective on January 1, 2004, mandating that new or expanding dairies and other animal factories comply with Clean Air Act pre-construction permit programs that prescribe substantive emissions reductions. The Association of Irritated Residents (AIR) successfully prevented dairy industry representatives from obtaining an injunction that could have extended the agricultural exemption. Nevertheless, industry representatives and the District entered into a questionable settlement agreement. Subsequently, AIR filed two suits against dairies that had begun construction without complying with the Clean Air Act. On December 6, 2005, U.S. District Court Judge Anthony Ishii ruled that the Fred Schakel Dairy had no vested right to be exempt from the Clean Air Act and that the District had the legal authority to require the pre-construction permit. While AIR has brought enforcement actions in the two years since SB 700, the Air District has not fined or stopped illegal animal factory construction, nor has the District issued a single permit to new or expanding animal factories.