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National Paint & Coatings Association, Inc. v. South Coast Air Quality Management Dist.


September 29, 2009


Appeal from a judgment of the Superior Court of Orange County, Ronald L. Bauer, Judge. Affirmed in part; reversed and remanded with directions in part. (Super. Ct. No. 03CC00007)

The opinion of the court was delivered by: Sills, P. J.




A trade group, the National Paint & Coatings Association, has brought this action against the South Coast Air Quality Management District, challenging the district‟s 2002 amendments to its rule limiting the amount of volatile organic compounds allowed in various kinds of paint and coatings in Southern California.*fn1

The challenged rule basically says: Here‟s a list of the maximum levels of volatile organic compounds that paint manufacturers may have in different kinds of paint and coatings, with the effective levels kicking in at various times.*fn2 The rule also has an averaging provision, similar to federal car mileage standards, which allows manufacturers to average the "actual cumulative emissions" of their paints and coatings so that the total emission can be under a hypothetical compliance limit, even if some of their paints and coatings are not.

The paint association‟s challenge is also conceptually simple enough: It asserts that the district has exceeded the authority given it by the statutes governing its authority to promulgate air pollution regulations, because the rule specifies limits that are not actually "available" and "achievable." (See Health & Saf. Code, § 40440, subd. (b)(1); 40406.*fn3

As we explain below, the paint association‟s challenge fails as to all of the categories of paints and coatings governed by the rule, except for two. In a word, if it exists, it‟s both "available" and "achievable," even if there is not much of it by way of variety or market penetration. There is substantial evidence that there are floor coatings, industrial maintenance coatings, high temperature industrial maintenance coatings, nonflat coatings, primers, sealers and undercoaters and quick dry primers, sealers and undercoaters which both exist and comply with even the most recent limits (effective July 2006) required under the rule. That is, technology complying with the limits is both available and achievable.

However, the administrative record shows there are zero -- count "em, zero -- products that comply with the most recent limits in two categories: quick-dry enamels and rust preventative coatings. We have no evidence that, in these categories, the technology is both "available" and "achievable" to comply with the district‟s amended limits; we have only speculation that one day in the future the technology will exist to comply with the limits.

We will therefore affirm the trial court in denying the paint association‟s requested writ of administrative mandate as to everything but these two categories. We will direct the writ to be granted as to quick-dry enamels and rust preventers, but with this proviso: Recognizing that, as we write in 2009 working with an administrative record largely based on information existing in late 2002 (and there‟s a reason for the long lag time, as will soon be apparent), instead of directing that the rule be vacated as to these two categories, the writ will conditionally give the district the opportunity to show, based on current technology, that quick-dry enamels and rust preventers can be made which comply with the most recent limits. Only if, after a hearing on remand, the district cannot show availability and achievability based on existing coatings in these two categories should a writ issue requiring the amended rule to be rolled back to earlier limits.*fn4


A. National Paint Association I

As mentioned, the rule was first promulgated in 1977. The rule was amended in 1999. The amended rule put very restrictive limits on volatile organic compounds. Those amendments were quickly challenged, as exceeding the district‟s enabling statutes, by the paint association in the Orange County Superior Court, then later in this court.

The challenge resulted in an unpublished decision, National Paint & Coatings Association, Inc. v. South Coast Air Quality Management District (June 24, 2002, G029462) [unpub. opn] [2002 WL 1365641] ("National Paint Association I").) In National Paint Association I, this court reversed a judgment denying the requested writ of administrative mandamus on procedural grounds. We noted that, at the very last moment -- that is, within about 10 days before the hearing at which the district considered the amended rule -- the district announced two significant exceptions. One exempted essential public services from certain interim limits. The other allowed small manufacturers to average their emissions. (See id. at p. 3.)

Those last-minute exceptions contravened section 40725, requiring 30 days public notice of a new rule. As we explained, the timing of the exceptions served to ""sandbag‟" the opposition to the amended rule in three ways: They effectively bought off opposition to the rule from public agencies like CalTrans and Metropolitan Water District (both of which have a need for coatings relatively high in volatile organic compounds because they last longer); they made it more difficult for opponents of the limits to rally opposition; and, they even precluded opponents of any exemptions from being heard. (National Paint Association I, 2002 WL 1365641 at p. 3.) We directed a writ of mandate to command the district to vacate its 1999 amendments, so as to allow the amended rule the required time to circulate before adoption. (Id. at p. 5.)

In our unpublished opinion, we stated that we did not reach the "merits" of the paint association‟s challenge to the 1999 rule. We did observe in that regard, though, that, for certain heavy duty public uses such as electrical transformers and water pipelines, "there is a serious question as to whether there are now any low volatile organic paints available as substitutes." (National Paint Association I, supra, 2002 WL 1365641 at p. fn. 2.)*fn5

B. National Paint Association II

By the end of December 2002, that is, within less than seven months of the filing date of National Paint Association I, the district promulgated an amended rule, this time avoiding the procedural mistake of inserting exemptions at the last minute. Quickly -- January 2003 -- the paint association filed suit in Orange County Superior Court, again asserting that the amended rule (let‟s call this the 2002 rule) violated the district‟s enabling statutes.

Not to put too fine a point on it, the district‟s lawyers quickly outmaneuvered the paint association‟s lawyers into what was no doubt perceived to be a more favorable forum for their side. They had the case removed to federal court.*fn6

The details here are interesting: The district‟s notice of removal was based on the theory that there had been a consent judgment in an unrelated federal case going back to 1997 which gave the district a "colorable federal defense" to the paint association‟s lawsuit.*fn7 After the notice of removal to federal court, the paint association responded with a motion to remand back to state court. Federal trial court judges typically have enough federal work to do without having to unnecessarily kibitz matters of state law, and, in 2004, the federal court granted the paint association‟s motion to send the case back to state court.

But the district appealed that order, and, if one reads the ensuing unpublished Ninth Circuit opinion, one finds that the federal judge‟s remand order was reversed because the paint association‟s counsel filed its remand request too late.*fn8

In short, but for a procedural mishap by the paint association‟s counsel, the case would have gone back to state trial back in 2004, and then on to (presumably) this appellate court by 2005 or maybe 2006. Instead, the Ninth Circuit did not issue its decision reversing the remand order until summer 2006, requiring Federal District Court Judge Dean Pregerson to undertake the arduous task of deciding the merits of the paint association‟s challenge.

The task was accomplished in May 2007, resulting in a published decision, National Paint & Coatings Association v. South Coast Air Quality Management District (C.D. Cal. 2007) 485 F.Supp.2d 1153, or "National Paint Association II." Significantly, the decision was decided as a matter of the federal court‟s diversity jurisdiction, looking solely to California precedent and statutes to best ascertain how our state‟s highest court would rule. (See id. at pp. 1155-1156.) When one reads the decision one discovers that, despite the supposedly federal basis for the original remand request, there is no federal law component in the National Paint Association II opinion. (So much for that "colorable federal defense.")

The federal trial court decided to deny the paint association‟s requested writ in National Paint Association II. We will discuss -- and mostly agree with -- the federal trial court‟s decision National Paint Association II below in parts III.D. and III.E.1. of this opinion. (Our sole disagreement is with National Paint Association II's decision not to consider one of the statutes in the scheme.) It should be noted here, though, that the point on which we agree with the paint association concerning the two categories of paints and coatings for which there is no evidence of availability or achievability was itself not specifically addressed in National Paint Association II.

C. National Paint Association III

However, the paint association‟s lawyers hadn‟t been completely outmaneuvered. During the case‟s sojourn in the federal courts, the state case continued in fits and starts. (Remember that the federal trial court had decided the case should be sent back to state court by early 2004, so, from the state trial court‟s point of view, for the period 2004 through 2006, it had in front of it a case where remand to federal court had been rejected).

The state court was going to try the paint association‟s suit in three phases:

(1) the legal authority of the district to propound the 2002 rule; (2) other claims by the paint association (e.g., that the district had not engaged in an adequate socioeconomic impact assessment); and (3) the district‟s own affirmative defenses. Phase 1, dealing with the issue of the district‟s authority, was tried to the court in September 2004. After that, however, there appears to have been a hiatus in the state court of about a year, until April 2006, when the district proposed a statement of decision. The paint association objected to that proposed statement in June 2006. In July 2006, before the trial court decided the matter, the Ninth Circuit reversed the federal court‟s decision to reject the remand to federal court. In the period August 2006 through May 2007, National Paint Association II was being litigated in the federal trial court. After the May 2007 decision by the federal trial court, the paint association dismissed its claims not associated within the scope of the district‟s authority, that is, not otherwise covered by Phase 1. The dismissals left no causes of action in the state case for judgment, and finally, in January 2008, the trial court issued its statement of decision as to Phase 1 proposed back in April 2006.*fn9

The statement of decision noted the evidence in the administrative record that a number of compliant paints and coatings were present on the market, and further referenced a 1997 assessment by Eastern Michigan University on the state of technology for low volatile organic compound coatings. The assessment concluded that low volatile organic compound technology ""should witness major progress over the next 5 to 7 years.‟" The assessment further "concluded that by the year 2005, there will be near-zero [volatile organic compound] coatings commercially available in a number of categories" (which, of course, also suggests that they would not be available in at least some others).

The statement of decision also pointed to four ""escape routes‟" that "address" the paint association‟s "feasibility concerns." One was the averaging provision (discussed above). The second was an extension of compliance deadlines for small "niche" paint manufacturers "that may be unable to utilize averaging." The third were requirements that the district‟s staff "conduct technology assessments to evaluate industry‟s progress in meeting" the limits and report back to the board as to the ""appropriateness of maintaining‟" future volatile organic compound limits. Finally, the statement of decision pointed to the statutory product variance process as set out in section 42365 et seq.

With the statement of decision, a judgment ensued denying the paint association‟s petition. A timely notice of appeal followed.


A. Collateral Estoppel: Public Interest Exception

The paint association‟s appeal is not foreclosed by the federal trial court‟s decision in National Paint Association II. The reason is the public interest exception to the doctrine of collateral estoppel. (See Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 620-621 [refusing to apply public interest exception to collateral estoppel and res judicata doctrines where Ninth Circuit had upheld federal trial court decision declaring parts of California campaign finance reform initiative unconstitutional]; City of Sacramento v. State of California (1990) 50 Cal.3d 51, 64 [prior decision adversely affected taxpayers or, alternatively, affected receipt of federal funds; either way, public interest required definitive decision]; Greenfield v. Mather (1948) 32 Cal.2d 23, 35 [recognizing public interest exception to res judicata]; Modesto City Schools v. Education Audits Appeal Panel (2004) 123 Cal.App.4th 1365, 1379 ["courts recognize an exception to the rule of collateral estoppel where there is a prior ruling on a question of law and the issue concerns a matter of public interest"].)

As the California Supreme Court pointed out in Kopp, state courts are the ""principal expositors of state law‟" (Kopp, supra, 11 Cal.4th at p. 620, quoting Moore v. Sims (1979) 442 U.S. 415, 429) and ""federal courts "lack jurisdiction authoritatively to construe state legislation‟" (Kopp, supra, 11 Cal.4th at p. 620, quoting United States v. Thirty-Seven Photographs (1971) 402 U.S. 363, 369).

The need for authoritative state construction of state legislation is illustrated in Arcadia Unified School Dist. v. State Dept. of Education (1992) 2 Cal.4th 251 (Arcadia). There, a prior state appellate decision was unpublished and thus could not be cited as legal authority. (Id. at p. 257.) Because of the void, our high court thus applied the public interest exception.

Arcadia is a template for the case before us. As otherwise persuasive or helpful as it might be, National Paint Association II is not binding on any California trial court. And of course the matter is of significant public interest. Everyone breathes. And everyone has some contact with paint or coating, even if only to rely on electric transformers and water lines that need rust proofing.

Ironically, the need for an authoritative state court interpretation of the district‟s "best available technology" statutes was itself underscored by the federal trial court in National Paint Association II. Judge Pregerson made a point of noting that "The California Courts have thus far declined to rule on the scope of [the district‟s] rule-making authority." (National Paint Association II, supra, 485 F.Supp.2d at p. 1157.)

This case also seems particularly appropriate for application of the public interest exception given that the removal to federal court was based on federal issues, yet federal issues did not play any role in the federal trial court‟s decision in National Paint Association II. In point of fact, the only reason the federal court was burdened with the job of interpreting state law in the first place was a procedural mishap (the lack of a timely filing) by the paint association.

B. Standard of Review

A word on the standard of review. The subject has already been well covered in Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1 (Yamaha), in both the majority and concurring opinions. As the Yamaha majority explained, when dealing with controlling statutes: "In one respect, our opinion in Wallace Berrie [v. State Bd. of Equalization (1985) 40 Cal.3d 60], may overstate the level of deference -- even quasi-legislative rules are reviewed independently for consistency with controlling law. A court does not, in other words, defer to an agency‟s view when deciding whether a regulation lies within the scope of the authority delegated by the Legislature. The court, not the agency, has "final responsibility for the interpretation of the law‟ under which the regulation was issued." (Yamaha, supra, 19 Cal.4th at p. 11, fn 4, italics added.) Even so, the court still accords "great weight and respect to the administrative construction.‟" (Id. at p. 12.)

And, as Justice Mosk wrote, concurring in Yamaha: "In the case of quasi-legislative regulations, the court has essentially two tasks. The first duty is "to determine whether the [agency] exercised [its] quasi-legislative authority within the bounds of the statutory mandate.‟ . . . [T]his is a matter for the independent judgment of the court." (Yamaha, supra, 19 Cal.4th at p. 16 (conc. opn. of Mosk, J.), italics added.)

As we read these rules, it is an independent question of law for this court whether the 2002 amendments exceeded the district‟s statutory authority. As Justice Mosk wrote for a unanimous court in Association for Retarded Citizens v. Department of Developmental Services (1985) 38 Cal.3d 384, 390-391: "The scope of judicial review of quasi-legislative administrative action is well settled. . . . To be valid, such administrative action must be within the scope of authority conferred by the enabling statute. . . . We have long recognized, of course, that "the construction of a statute by officials charged with its administration, including their interpretation of the authority invested in them to implement and carry out its provisions, is entitled to great weight . . . .‟ Nevertheless, "[w]hatever the force of administrative construction, . . . final responsibility for the interpretation of the law rests with the courts.‟" (Italics added.)

C. The Controlling Statutes

1. Overview and Relevant Statutory Text

In California, the regulatory agency with authority over vehicular air pollution is the California Air Resources Board. A series of regional regulatory districts have authority over nonvehicular air pollution. (§ 40000 ["The Legislature finds and declares that local and regional authorities have the primary responsibility for control of air pollution from all sources, other than emissions from motor vehicles. The control of emissions from motor vehicles, except as otherwise provided in this division, shall be the responsibility of the state board."].) The most prominent of these regional districts, given Southern California‟s well-known smog problem, is of course the South Coast Air Quality Control District. (See § 40402.*fn10

The district‟s rule making authority is delineated in section 40440. While we quote the entirety of the statute in the margin,*fn11 the critical text is in subdivisions (a) and (b), which we quote here:

"(a) The south coast district board shall adopt rules and regulations that carry out the plan and are not in conflict with state law and federal laws and rules and regulations. Upon adoption and approval of subsequent revisions of the plan, these rules and regulations shall be amended, if necessary, to conform to the plan.

"(b) The rules and regulations adopted pursuant to subdivision (a) shall do all of the following:

"(1) Require the use of best available control technology for new and modified sources and the use of best available retrofit control technology for existing sources."

The phrases "best available control technology" and "best available retrofit control technology" have been specifically defined in sections 40405 and 40406 (the definitions part of the statutory scheme setting up the district) respectively. Section 40405 provides in its entirety:

"(a) As used in this chapter, "best available control technology‟ means an emission limitation that will achieve the lowest achievable emission rate for the source to which it is applied. Subject to subdivision (b), "lowest achievable emission rate,‟ as used in this section, means the more stringent of the following:

"(1) The most stringent emission limitation that is contained in the state implementation plan for the particular class or category of source, unless the owner or operator of the source demonstrates that the limitation is not achievable.

"(2) The most stringent emission limitation that is achieved in practice by that class or category or source.

"(b) "Lowest achievable emission rate‟ shall not be construed to authorize the permitting of a proposed new source or a modified source that will emit any pollutant in excess of the amount allowable under the applicable new source standards of performance."

Section 40406 provides in its entirety: "As used in this chapter, "best available retrofit control technology‟ means an emission limitation that is based on the maximum degree of reduction achievable, taking into account environmental, energy, and economic impacts by each class or category of source."

2. California Cases on the Controlling Statutes

While a number of California appellate decisions have involved challenges to air pollution regulations promulgated by the district,*fn12 as we have noted above, the federal trial court in National Paint Association II stated California courts had "thus far declined" to "rule on the scope of [the district‟s] authority." (National Paint Association II, supra, 485 F.Supp.2d at p. 1157.)

The federal trial court‟s statement, however, was not quite accurate. Two published appellate decisions have certainly dealt with the scope of the district‟s authority in the context of pondering just what the Legislature intended when it wrote the words, "best available" in the context of new or retrofit technology.

First, in upholding district regulations limiting the amount of small particulate matter that refineries may emit, the Western Petroleum case dealt with the problem of exactly what is meant by the word "achievable." (See Western States, supra, 136 Cal.App.4th at p. 1019.)*fn13 The Western Petroleum court took the common sense view that if something had already been done, it‟s achievable, and on that basis reasoned that if one out of six refineries had been able to meet the district‟s small particulate matter standard, that standard was achievable by the five others. (See id. at pp. 1019- 1020 [rejecting notion that a given refinery‟s "achievements" were not a "fair indication" that the other refineries could also meet the standard].)

Second, Security Environmental, supra, 229 Cal.App.3d 110, had occasion to comment on the meaning of "best available control technology" in the context of permits for a hazardous waste incineration facility based on what had been a negative declaration as to environmental effects. In that case, the district wanted to condition construction of the incineration facility on its using the "best available control technology" at the time of construction, even though permits had already been granted more than two years previously. The Security Environmental court observed: "The [best available control technology] has progressed since the original permits and new information is available in the form of technology for controlling acid gases, particulates and their associated dioxins and furans. It has further been determined that a previously known [selective catalytic reduction nitrogen oxide] control system is cost effective now due to new information, thus qualifying its use on hazardous waste incinerators as technologically feasible [best available control technology]. [¶] Thus the new information raising the possibility of substantially increased health risk and the availability of new emission control technology which may lessen that risk require an [environmental impact report] to set forth the present significant environmental effects of the proposed project and any mitigating measures to minimize the significant environmental effects and alternatives to the proposed project." (Security Environmental, supra, 229 Cal.App.3d at pp. 124-125, italics added.)

The passage is significant. Like the Western Petroleum court, the Security Environmental court treated the phrase "best available control technology" in the common, ordinary sense of the words "best" and "available" as something that exists -- rather than something that might one day be expected to exist.

D. Source Versus Application

The core of the paint association‟s challenge to the 2002 rule may be summarized this way: While compliant paints and coatings may exist in various categories, there is no evidence in the administrative record that those compliant paints and coatings are suitable for all "applications" or uses of those paints. Thus, for example, there is nothing to show that any of the paints or coatings used for, say, heavy-duty hard-weather "applications" like electric transformers or street lights, are suitable for such a use.

On this point, the district has the better part of the argument. The key word in the statute is sources -- as in "sources" of pollution -- not "applications." The cornerstone statute, section 40000, is framed in terms of the district‟s responsibility for "control of air pollution from all sources" (italics added) while the more detailed subdivision (b)(1) of section 40440 is similarly framed in terms sources of pollution: "Require the use of best available control technology for new and modified sources and the use of best available retrofit control technology for existing sources." (Italics added.)

As the federal trial court (we think correctly) divined in National Paint Association II, the number of possible "applications" is infinite. (National Paint Association II, supra, 485 F.Supp.2d at p. 1158 [reference to "every conceivable application"].)

Put another way: You can slap paint on anything. It is therefore unreasonable to believe that the Legislature intended to think of the object receiving the paint or coating as a regulated "source of pollution"; the natural reading of the word is that the paint or coating itself is the regulated "source," particularly when one realizes that it is paint or coating that is the "source" of any obnoxious fumes from an object that might escape into the air. It follows then that if the district‟s rule directed at the paint or coating -- as distinct from whatever the paint or coating is put on -- is within the authority of the statute, that is enough to comply with the statute. Any other conclusion would mean that no paint or coating could ever be limited in emissions, because one could always dream up a heavy duty application for which the limit would be, as the doctors say, counterindicated.

E. State of the Art

1. The Analysis So Far

Based on what we have noted so far, we uphold the 2002 rule as it applies to all but two categories of regulated paints and coatings. The administrative record contains a table of "currently available compliant coatings" that shows that there are at least some compliant coatings (compliant with the 2006 limits) in all categories except, as we have noted, quick-dry enamels and rust preventative coatings.

To be sure, in some categories the total percentages of coatings compliant with the 2006 limits are pretty low: Only eight percent of quick-dry primer sealer undercoaters are shown compliant with the 2006 limits, only 11 percent of industrial maintenance coatings are compliant, and only three percent of nonflat coatings are compliant.

Even so, in the ordinary sense of the words, it means that there are "best available" paints and coatings, in existence, that meet the 2002 rule. Obviously such coatings are "achievable" -- they have been, in fact, achieved. Applying the Western Petroleum rationale -- if it has been already been done, it‟s achievable -- it is clear that the rule is within the bounds of 40440 as regards these categories.

2. Beyond State of the Art: "Strawless Bricks" Versus "Godot"

We now turn to the issue as to whether the limits on two categories, quick-dry enamels and rust preventative coatings -- categories for which there are no known compliant coatings in existence (at least in this record), are within the scope of the district‟s statutory authority.

The parties proffer two different models of the statute, basically dividing on whether the district‟s statutory authority is limited to requiring state of the art technology, or extends to requiring technology that is beyond current state of the art.

Which brings us to a topic that is generally referred to in the literature as "technology forcing." Unfortunately, the phrase "technology forcing" is not always clear. At its mildest, it appears to connote technology redirection, in which the law seeks to "shape" technology into existent low or zero emission approaches, even if, for example, those approaches are relatively expensive. At its most extreme, technology forcing connotes an attempt to decree a technological result by legal ukase.

Two competing literary tropes exemplify "technology forcing" in this extreme sense. On the positive side, we have the comment of the federal appellate court for the District of Columbia in a 1980 occupational safety case, suggesting that if the legislative goal is sufficiently important, that fact overrides what does, or does not, exist as state of the art. The goal, as the court said, simply cannot wait for "the Godot of scientific certainty." (United Steelworkers of America, AFL-CIO-CLC v. Marshall (D.C. Cir. 1980) 647 F.2d 1189, 1266 (United Steelworkers).)

Godot was the subject of Samuel Beckett‟s absurdist play about two characters waiting for a compatriot who -- and here‟s the punch line -- never arrives.*fn14

(Perhaps a more popular trope for the technology forcing approach would be Captain Picard‟s line to his immediate subordinate in the second Star Trek series, "Make it so, Number One!"). In the "Godot" model, the regulatory agency need only show that "modern technology has at least conceived some industrial strategies or devices" that will be "likely to be capable of meeting" the regulatory requirement. (United Steelworker, supra, 647 F.2d at p. 1266, italics added.)

The other literary trope is of somewhat older origin that Beckett‟s play. It is Pharaoh‟s venting of his displeasure with the Israelite slaves by making them gather their own straw to make bricks, yet maintaining the same quota for brick production. Needless to say, that was a bit of a hardship.*fn15 It was not "feasible" to make bricks without straw, or at least, given the technology of the day, decent bricks of the sort that a ruler like Pharaoh would require for some building project like his tomb.*fn16 In the "brickless straw" model, the limits of the agency‟s authority do not extend beyond what currently exists.

3. When All Else Fails Read the Relevant Statutes

These competing images, however, can only serve as images of competing legislative models, they cannot tell what our Legislature actually intended. To do that, we must actually examine the words of the relevant statutes.

a. Plain Meaning

We now parse the relevant statutes, sections 40405, 40406, and 40440. The operative grant of rule-making authority to the district is found in section 40440, subdivision (b)(1) where the district is mandated to adopt rules that "Require the use of best available control technology for new and modified sources and the use of best available retrofit control technology for existing sources." Beyond that sections 40405 and 40406 define "best available control technology" and "best available retrofit control technology" respectively in terms of an "emission limitation" that "will achieve the lowest achievable emission rate for the source to which it is applied" (§ 40405) or "an emission limitation that is based on the maximum degree of reduction achievable" (§ 40406).

We first notice the obvious -- the first operative word in the operative phrase: "best." Best is a comparison word: good, better, best, and thus implies a choice of things existing. Competing speculative technologies or what is merely "conceivable" do not lend themselves to easy comparison.

We next notice the word "available." The word similarly indicates something that exists in a way that things that are merely "conceivable" do not. Cold fusion is conceivable. It is not, today, available.

What about "achievable"? The word "achievable" has the distinction of having one of the shortest definitions one is likely to encounter in the Oxford English Dictionary. It is literally one phrase: "Capable of being achieved." And the definition of "achieved" is similarly short, consisting of four synonyms, all in the past tense: "Completed; accomplished; attained, won." (1 Oxford Eng. Dict. (2d ed 1989) at p. 102.)

The past tense in the variations on the word "achievable" indicate that it refers to a thing or process that currently exists, as distinct from what is speculative or merely theoretical. When construed together with the words "best" and "available," the conclusion becomes inevitable: The district has authority to require the best of what exists, not what might conceivably come on the market.

What about the "able" in achievable? Surely the choice of the word "achievable" as distinct from "achieved" is some indication that the district may require at least something, even if it doesn‟t exist as such, can be readily put together?

Indeed; we agree. It is said, for example, while some nations do not possess atomic weapons as such, they can put them together on a moment‟s notice. The technology for them already exists -- it is simply a matter of the will to assemble the component parts.

So, the fact that there are no existing compliant coatings at, say "time one," does not necessarily mean such coatings could not be "achieved" at, say, "time one plus almost immediately thereafter." That is, even if something does not currently exist, it is "achievable" in the sense that it can be readily assembled out of things that currently do exist. Using lemon juice instead of pesticides in your kitchen to kill ants is certainly achievable, even if you don‟t have any lemon juice on hand.

This opinion should therefore not be read as restricting the district‟s authority to promulgate a rule requiring what is "achievable" when based on existing technology.

Thus, the fact that there are no compliant quick-dry enamels or rust preventers that are compliant with the 2006 limits is not absolutely dispositive. However, as shown by the trial court‟s own statement of decision referencing the Eastern Michigan University assessment of the state of technology for low volatile organic compound coatings, there was no evidence of any ready-to-be-assembled sort of achievability. That assessment simply prophesied that there would be "major progress over the next 5 to 7 years" and predicted, H.G. Wells style, that there would be compliant coatings by the year 2005.

Science fiction is not substantial evidence. A trend line does not achievability make. There is the logical fallacy of extrapolation, which assumes that the future will be like the past, only more so. (See Rahdert, Of Impressionists and Rohrschach Blots (1986) Col. L. Rev. 1283, 1288 ["Indeed, Professor Friedman warns us early on not to indulge in the "extrapolation fallacy‟ -- the usually erroneous assumption that the future will be just like the present, only more so"*fn17 ].) It is a fallacy which, in other contexts, California courts have squarely rejected. (E.g., In re Marriage of Mosley (2008) 165 Cal.App.4th 1375, 1386 ["We must be wary of "the logical fallacy of extrapolation, in which some series of events in the past is necessarily assumed to continue in exactly the same way into the future.‟"].)

There is thus a difference between existing technology and projected technology based on a trend line. Some of us are old enough to remember those bumptious predictions in the 1950‟s forecasting that we‟d all be commuting to work in flying aerocars. And wasn‟t there a 1967 Star Trek episode that was premised on the exile of a tyrant who, in 1996, blasted off into deep space? The extrapolation of the space technology of 1967 into an interplanetary voyage in 1996 didn‟t seem quite so laughable at the time. The point is: The Legislature used the words "best," "available" and "achievable," and those words demand something currently existing, not mere projection.

b. Light Shed by Statutes Part of the Same Scheme

Any doubt about our conclusion is dispelled by examining the statutory scheme of which sections 40405, 40406, and 40440 are a part.

The district‟s authority is part of a general legislative scheme to control air pollution from nonvehicular sources in Southern California, and this scheme envisions controls on both existing and new sources. (See 40440, subd. (b)(1) [reference to "new and modified sources" and "existing sources"].).

Statutes which are part of the same scheme should be construed together. (Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1289-1290 [giving term "employing agency" consistent meaning across statute]; County of Placer v. Aetna Cas. etc. Co. (1958) 50 Cal.2d 182, 188-189 ["statutes relating to the same subject matter are to be construed together and harmonized if possible"]; Wertin v. Franchise Tax Bd. (1998) 68 Cal.App.4th 961, 974 ["Statutes are to be construed together with other statutes forming part of the same scheme."].)

The point is important for the case before us because the Legislature in this case used exactly the same phrase -- "best available" -- to describe what it wanted the district to do for both new and existing (and only existing sources can be in need of retrofitting) "sources" of pollution.

We may thus learn things about "best available retrofit control technology" for existing sources of pollution from what the Legislature said about "best available control technology" for new sources.

And what we learn is: Best available means best available, not what is "conceivable."

First, section 40723, subdivision (b), which by its terms involves "best available control" technology as distinct from "best available retrofit control" technology, says that operators of equipment subject to "best available control technology" requirements have the right to request the district to "review whether the applicable requirements have been achieved and whether the requirements should be required for the source category." (Italics added.)*fn18

It would be highly anomalous for the Legislature to build in a protection for the operators of equipment subject to rules governing new sources of pollution, namely that the operator could request review as to whether the requirements had been "achieved" -- past tense -- if the Legislature intended that rules governing existing sources of pollution could be based on technology beyond state of the art. If anything, one would expect the reverse: If the Legislature wanted to give the district authority to make rules requiring something beyond state of the art technology, it would presumably want to give that authority first as regards any new sources of pollution, where, after all, the most recent "conceivable" technologies would be more likely to be devised, then attempted.*fn19

Second, section 40703 similarly points in the direction of existing, as distinct from conceivable, technology. The statute provides, in full that: "In adopting any regulation, the district shall consider, pursuant to Section 40922, and make available to the public, its findings related to the cost effectiveness of a control measure, as well as the basis for the findings and the considerations involved. A district shall make reasonable efforts, to the extent feasible within existing budget constraints, to make specific reference to the direct costs expected to be incurred by regulated parties, including businesses and individuals." (Italics added.) Cost effectiveness is a factor which necessarily demands the hard data ("direct costs") associated with existing technology. Conceivable technology that is only "likely" to meet a regulatory requirement given a hypothesized trend line is generally not amenable to clear-eyed cost accounting.

Third, section 40922 similarly follows section 40703 in mandating consideration of cost effectiveness, again suggesting that whatever "best available" technology that the agency may be considering requiring actually be available, and therefore amenable to cost calculation.*fn20

Next, section 40916, though it ostensibly governs the powers of the state air resources board, addresses the problem of volatile organic compounds in paints in terms of state of the art, implying a regulatory regime aimed at the possible, not merely the conceivable. Subdivision (d) of the statute provides power to the state air resources board to "recommend a suggested control measure for adoption by a district to meet the requirements of the district‟s plan adopted pursuant to this chapter for any architectural paint or coating, if the state board determines all of the following: [¶] (A) The control measure will achieve a feasible reduction in volatile organic compounds emitted by the architectural paint or coating. For purposes of this paragraph, "feasible reduction in volatile organic compounds emitted‟ means an emission limitation that is achievable, taking into account environmental, energy, and economic impacts. [¶] (B) Adequate data exist to establish that the control measure is necessary to attain state and federal ambient air quality standards. [¶] (C) The control measure is commercially and technologically feasible and necessary." (Italics added.)*fn21 It is hard to have "adequate data" and gauge "environmental, energy, and economic impacts" when technology is still on the drawing board.

Finally, section 40440.11, which governs the situation where the district proposes best available control technology that is stricter than federal law requires, restricts the district‟s options to equipment that is "existing in that source category or a similar source category." Again, it would be highly anomalous for the Legislature to give the district authority to, in effect, order technology by decree in one statute, when it was confining the district‟s options to "equipment existing in that source category" (italics added) in another statute.*fn22

4. The Escape Valves

An important part of the rationale of National Paint Association II, Western Petroleum, and the statement of decision by the trial judge here is the existence of escape valves. The main escape valves are (1) averaging, and (2) the possibility of individual variances under section 42365. The latter is a one-sentence statute that provides for individual relief: "Any person who manufactures a product may petition the hearing board for a product variance from a rule or regulation of the district pursuant to this article." (The other ones are extra time and the right to request a technology review.)

Because we have concluded that the district has authority to require state of the art technology (here, in paints and coatings), and because in most of the regulated categories compliant coatings exist -- meaning that the district‟s rule certainly does not exceed the state of the art as to those categories, we do not ground our upholding of the district‟s rule on the fact of these escape valves.

The significance of our refusal to ground the upholding of the rule on excape valves is that we must reject the paint association‟s argument about the hardship the rule has on small niche manufacturers. According the paint association, the fact of escape valves does nothing to help such manufacturers, because they lack the proprietary technology to duplicate the compliant coatings (to say nothing of their inability to duplicate such coatings economically), and their market is too small to take advantage of averaging.

The hardship to small manufacturers, however, does not show that the 2002 rule exceeded the scope of the district‟s statutory authority. The district‟s scope of authority is framed in terms of limiting pollution by source, not manufacturer. Averaging is simply a way for a given manufacturer to produce some noncompliant coatings and still remain in business.*fn23 Variances, by contrast, do not go to the scope of the authority to make a rule, they go to whether that rule should be applied in a given instance. The upshot is: If niche manufacturers cannot take advantage of averaging, they must seek variances. The district‟s rule is still within its authority.

By the same token, however, the existence of the possibility of averaging or of a variance cannot create statutory authority that the Legislature never gave the district in the first place. Sections 40440, 40405, and 40406 do not say to the district: "Never mind if you require emission limits that are beyond state of the art and therefore outside of your authority to make a rule; feel free to do that because the possibility of averaging, or variances (or extra time or a staff technology review), allows you to command anything you want." No. The statutes are framed as a grant of authority, and there is an independent possibility for variances if the proper exercise of that authority is too onerous as regards a given manufacturer. Put another way: The possibility of a legitimate exception to a rule that strays beyond an agency‟s authority does not place the rule within that authority in the first place.

5. Floors versus Ceilings

From what we have just seen in the statutory language, the Legislature evidently did not contemplate regional air pollution rules that required technology beyond state of the art. The district counters with the assertion that these "best available technology" statutes do not, as a matter of fact, limit the district‟s authority to make rules, they simply require the district to make rules that require at least state of the art, but the district still has authority to make rules that go beyond state of the art.

There are two answers to this point. First, there is nothing in the text or legislative history*fn24 of the statutes that sets up any sort of dichotomy on the lines of: "Make rules requiring the best technology available, and feel free to also make rules requiring technology that is not available as well." That is, there is a paucity of statutory language for the idea that "best available technology" is merely a "floor," not a "ceiling."

Second, the statutory grant of authority to the district is one that specifically requires the district to remain within the bounds of the established statutes. Section 40440 subdivision (a) provides that "The south coast district board shall adopt rules and regulations that carry out the plan and are not in conflict with state law and federal laws and rules and regulations." (Italics added.) Section 40916, subdivision (d)(1)(C)(2) provides "Every rule adopted by a district regarding architectural paint or coatings shall be adopted by the governing board of the district in accordance with existing law, and shall include at least one public workshop." (Italics added.) Under the district‟s asserted scope of its authority, the words "best available" as used in sections 40440, 40405, and 40406 would be surplusage, with the Legislature having said, in effect: "You are to require the best available technology to reduce emissions, but don‟t worry about figuring out what the best available technology is, because you can always go beyond that."


The judgment denying the requested writ of mandate sought by the paint association is affirmed, except in the following respects:

As to, and only as to, quick-dry enamels and rust preventative categories of coatings, the matter is remanded to the trial court for a hearing to determine whether there is any current (2009) state of the art technology available to comply with the district‟s 2006 limits on volatile organic compounds. If the trial court determines that there is not, the trial court shall grant the relief requested by the paint association as to those two categories of coatings only. If there is, the trial court shall deny the relief requested.

In the interest of justice each side shall bear its own costs on appeal.


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