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California Unions for Reliable Energy v. Mojave Desert Air Quality Management Dist.

October 30, 2009; as modified November 16, 2009

CALIFORNIA UNIONS FOR RELIABLE ENERGY ET AL., PLAINTIFFS AND APPELLANTS,
v.
MOJAVE DESERT AIR QUALITY MANAGEMENT DISTRICT ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from the Superior Court of Riverside County. Harold W. Hopp, Judge. Reversed with directions. (Super.Ct.No. INC071192).

The opinion of the court was delivered by: Richli Acting P.J.

CERTIFIED FOR PARTIAL PUBLICATION

OPINION

In 2007, the Mojave Desert Air Quality Management District (the District) adopted Rule 1406.*fn1 Rule 1406 concerns the use of road paving - which reduces airborne dust - to offset increases in airborne dust as well as other forms of particulate air pollution.

The parties offer strikingly different characterizations of Rule 1406.

According to the District, Rule 1406 merely provides a "protocol" to be used in applying for, calculating, and issuing paving offsets. It does not authorize any actual road paving; hence, it cannot possibly have any environmental effects. Any future paving offsets will be subject to environmental review if and when applicants seek them, but at this point, their environmental effects are speculative.

Based on this characterization, the District found that its adoption of Rule 1406 was exempt from environmental review under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) under the "Class 8" categorical exemption, which applies to "actions taken by regulatory agencies . . . to assure the maintenance, restoration, enhancement, or protection of the environment where the regulatory process involves procedures for protection of the environment." (Cal. Code Regs., tit. 14, § 15308.)

By contrast, according to plaintiffs,*fn2 Rule 1406 "would allow the paving of up to 5,000 miles of dirt roads," and thus it would have adverse environmental effects. Moreover, the fine particulate matter produced by combustion is a worse pollutant than the coarse particulate matter produced by unpaved roads, so that using the latter to offset the former would, in itself, have adverse environmental effects. Plaintiffs conclude that Rule 1406 does not qualify for the claimed exemption.

CEQA does not demand the impossible; it simply requires public agencies to consider the reasonably foreseeable environmental effects of their actions. Plaintiffs may have overstated their case a bit by harping on the unlikely possibility that Rule 1406 may result in the paving of all 5,000 miles of unpaved road within the District‟s jurisdiction. Still, it is reasonably foreseeable - indeed, it is almost undeniable - that the adoption of Rule 1406 will result in some road paving. Plaintiffs showed that road paving would tend to have adverse environmental effects; the District, for its part, failed to show that these effects would be either de minimis or too speculative to analyze. Accordingly, there was insufficient evidence to support the District‟s finding that the adoption of Rule 1406 would "assure the maintenance, restoration, enhancement, or protection of the environment . . . ." (Cal. Code Regs., tit. 14, § 15308.)

I. FACTUAL BACKGROUND

A. General Legal Background

Particulate matter (PM) refers to very small solid or liquid particles that can be suspended in the atmosphere. Particulate matter consisting of particles that are 10 micrometers or less in diameter (PM10) is considered an air pollutant. (40 C.F.R. § 50.6(c).) PM10 can be further subclassified into fine particles, which are 2.5 micrometers or less in diameter (PM2.5) (40 C.F.R. part 50, Appx. L) and coarse particles, which are between 10 and 2.5 micrometers in diameter (PM10-2.5) (40 C.F.R. part 50, Appx. O).

The federal Clean Air Act (42 U.S.C. § 7401 et seq.) requires the Environmental Protection Agency (EPA) to prescribe national ambient air quality standards (Standards). (42 U.S.C. § 7409(a), (b).) These include separate Standards for PM10 (40 C.F.R. § 50.6(a)) and PM2.5 (40 C.F.R. § 50.7). Areas that fail to meet the Standards are designated as "nonattainment" areas. (42 U.S.C. § 7407(d).)

Each state is required to adopt a state implementation plan (Plan) that "provides for implementation, maintenance, and enforcement" of the Standards. (42 U.S.C. § 7410(a); see also id., § 7407(a).) A Plan must include a permit program for major new or modified stationary sources of air pollution in nonattainment areas (new source review). (42 U.S.C. §§ 7410(a)(2)(C), 7502(c)(5), 7503.) A permit for a new source may be granted only if it obtains emission reduction credits to offset the increased emissions that it will produce. (42 U.S.C. § 7503(a)(1)(A), (c).)

The District "is the local agency with the primary responsibility for the development, implementation, monitoring, and enforcement of air pollution control strategies" for most of the Mojave Desert Air Basin. (Health & Saf. Code, § 41211; see also Health & Saf. Code, §§ 41200-41267; Cal. Code Regs., tit. 17, § 60109 [defining the Mojave Desert Air Basin].) The Legislature intended the District "[t]o successfully develop and implement a comprehensive program for the attainment and maintenance of state and federal ambient air quality standards . . . ." (Health & Saf. Code, § 41200, subd. (d).) To that end, the District has the power to make rules that become part of the state Plan. (Health & Saf. Code, § 41230; see generally id., § 41200 et seq.)

Parts of the District have been designated as nonattainment areas for PM10. (40 C.F.R. § 81.305; 67 Fed. Reg. 50805, 59005; Cal. Code Regs., tit. 17, § 60205.) However, the District does not include any nonattainment areas for PM2.5. (40 C.F.R. § 81.305; Cal. Code Regs., tit. 17, § 60210.)

The following additional facts are taken from the administrative record.*fn3

B. Rule 1406

"Traditional" offset methods include shutting down an existing facility or controlling the emissions from it. The District has identified road paving as an acceptable - albeit ""non-traditional‟" - method of offsetting PM10 emissions. The District‟s jurisdiction includes approximately 5,000 miles of unpaved roads.

Rule 1406 was derived from a similar rule adopted in Maricopa County, Arizona. Its purpose is to ensure that PM10 offsets for road paving meet federal requirements that all offsets must be "[r]eal," "[q]uantifiable," "[p]ermanent," "[e]nforceable" and "[s]urplus." (See 42 U.S.C. § 7503(a); 40 C.F.R. 51, Appx. S, § IV(C)(3)(i)(1).)*fn4

Rule 1406 is too long to quote here in its entirety. Accordingly, we summarize its principal provisions.

It states that paving offsets "may be used as offsets in accordance with" other District rules governing new source review. It provides two mathematical formulas for determining the PM10 emissions from paved and unpaved roads, respectively, in units of pounds per vehicle mile traveled. It then provides that "[t]he [PM10] emission reductions associated with paving an unpaved [road] shall be calculated as the difference . . . between the emissions from the road in the unpaved condition and the emissions from the road in the paved condition." The resulting reduction in PM10 emissions can be used to offset an increase in PM10 emissions on a one-to-one basis. (See also Mojave Desert Air Quality Management District Rule 1305(C), available at , as of June 19, 2009.)

Rule 1406 also prescribes procedures for approving or denying an application for paving offsets. It states, "The [District] shall determine whether to issue or deny [paving offsets] in compliance with the standards set forth in subsection (C)(5) . . . ." Subsection (C)(5) then states:

"(a) The [District] shall only issue [paving offsets] pursuant to this Rule, if the emission reductions will be Real, Quantifiable, Permanent, Enforceable and Surplus.

"(b) The [District] shall only issue [paving offsets] pursuant to this rule . . . in the amount determined necessary for construction of the new or modified facility or emissions unit . . . ."

Finally, Rule 1406 provides: "After the [District] has determined to issue the [paving offsets] the [District] shall submit the proposed [paving offsets] for public notice and comment . . . ." "Upon the expiration of the public comment period; after review of comments accepted, if any; and upon payment of the appropriate analysis fee, if any; the [District] shall issue the [paving offsets] . . . ."

C. The Proposed Class 8 Categorical Exemption Finding

A staff report acknowledged that the adoption of Rule 1406 was a ""project‟" within the meaning of CEQA. It stated, however: "The potential environmental impacts of compliance with the adoption of proposed Rule 1406 are positive to the environment, as proposed Rule 1406 will encourage additional road paving with commensurate reduction in particulate emissions from unpaved road dust entrainment."*fn5 It also stated: "The adoption of proposed Rule 1406 is exempt from CEQA review because it will not create any adverse impacts on the environment. Because there is no[] potential that the adoption might cause the release of additional air contaminants or create any adverse environmental impacts, a Class 8 categorical exemption (14 Cal. Code Reg[s]. § 15308) applies."

D. Plaintiffs‟ Comments

In response to the staff report, plaintiffs submitted 86 pages of comments. Their comments were supported by the in-depth analyses of Dr. Petra Pless and David P. Howekamp, who were duly qualified expert environmental consultants.

Plaintiffs objected that the adoption of Rule 1406 could have a number of potentially significant environmental impacts. In this ...


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