Appeals Court Sides With San Joaquin Clean Air Advocates

A coalition of clean air advocates and conservation groups today hailed a
ruling from the U.S. Court of Appeals for the Ninth Circuit that
upholds an air pollution rule requiring San Joaquin Valley builders to
mitigate air pollution associated with new housing projects and other
large developments.

The Ninth Circuit upheld a lower court decision that the San Joaquin
Valley Air Pollution Control District rule is legal. Builders
unsuccessfully sought to overturn the rule, which requires them to
compensate for indirect pollution such as smog caused by traffic
increases from large new developments.

"The court agreed that federal law gives states and local air agencies
the power to address pollution caused by sprawl," said Earthjustice
attorney Paul Cort, who represented the coalition of clean air advocates
and conservation groups. "This decision will help not only in the San
Joaquin Valley, but will also empower other areas to follow suit."

The National Association of Home Builders filed a challenge in federal
district court in June 2007 seeking to invalidate the rule, claiming
that only the federal government can regulate these activities. In
2008, the district court upheld the rule and the Home Builders appealed
to the Ninth Circuit Federal Court of Appeals.

The coalition intervened in these court cases on behalf of the air district to defend the innovative air pollution rule.

At issue is the San Joaquin Valley Air District's rule entitled
"Indirect Source Review," which requires developers to mitigate
pollution from the increased traffic generated by new development.
Developers can either incorporate into their projects elements that will
minimize construction and traffic-related emissions such as using
cleaner construction equipment, building near public transit, adding
bicycle lanes, or building walkable shopping into the project--or pay a
mitigation fee to the air district to be used to purchase off-site
emission reductions.

"The indirect source rule is the first effective, enforceable regional
regulation that makes builders accountable for the transportation air
pollution consequences of the design of their proposed developments in
terms of the likely traffic generation," said Jim Tripp, Senior Counsel
at the Environmental Defense Fund. "This decision has transformed the
rule from a regional initiative unique to California into a national
model."

The intervention is unusual for environmental and public health groups
that have recently filed and settled numerous lawsuits to force the air
district to do a better job of protecting public health.

Earthjustice is representing Environmental Defense and the Kern-Kaweah
(Bakersfield), Tehipite (Fresno), and Motherlode (Sacramento) Chapters
of the Sierra Club in the intervention.

A copy of the ruling by the U.S. Court of Appeals for the Ninth Circuit can be obtained at:

https://www.ca9.uscourts.gov/datastore/opinions/2010/12/07/08-17309.pdf