War Over Air

Local smog fighters — battling desperately to clean our region’s unhealthy, besotted air — got slapped around good by the Supreme Court last week. They went too far, the court ruled, in restricting the purchase of diesel vehicles, even though diesel fumes are the region’s primary cause of cancers from air pollution.

At this point, if this were a movie, the bloodied, battered civil servants (and their environmentalist allies) might turn to a superhero to save the day. Perhaps someone played by Arnold Schwarzenegger?

It looks as though life could indeed imitate art. The dispute over smog rules is likely to reach the governor’s jurisdiction, and he’ll have a leading role to play if the state intervenes to save the smog rules. But it’s unclear whether Schwarzenegger will flex his political muscle on behalf of the civil servants or the industries that oppose them. Or whether a middle ground is possible.

Schwarzenegger’s own policy goals call for a 50 percent reduction in air pollution by 2010. “That’s more ambitious than anything any governor has ever planned,” said Bill Magavern, senior legislative representative for Sierra Club California. “But he’s been in office now for five and a half months and hasn’t really moved toward implementing this goal. He says he wants action, action, action.”

Schwarzenegger, a pro-business Republican but also an avowed environmentalist, appears inevitably headed for defining confrontations, which could force him to choose between protecting the environment and aligning with his party’s national leader, President Bush.

The governor may get an early plot complication in the dispute over local rules for purchasing new school buses, airport shuttles, trash trucks, taxis and street sweepers — any public or private fleet of at least 15 vehicles. All vehicles purchased must be low-emission, according to the contested guidelines of the South Coast Air Quality Management District (AQMD). Diesel engines are specifically prohibited, even though new diesel engines run much cleaner than their ancestors. For the most part, AQMD rules compel fleet operators to buy natural gas–powered vehicles.

These rules prompted the federal lawsuit from the Chicago-based Engine Manufacturers Association, which represents diesel-engine makers. It was later joined by the Western States Petroleum Association, whose member companies produce diesel fuel as well as gasoline.

Schwarzenegger’s administration has not announced a position on the AQMD’s fleet rules. But in the wake of the Supreme Court ruling, his view could matter a great deal. One reason that the AQMD lost in the Supreme Court is that Justice Antonin Scalia, writing for the court majority, said regulatory authority rested with the federal government and the state of California. He practically invited the AQMD to turn to the state Air Resources Board, all of whose members serve at the pleasure of Governor Schwarzenegger. The board, with Schwarzenegger’s blessing, could seek a federal waiver that would preserve the AQMD’s fleet rules. If the Bush administration balks — hardly an unlikely scenario — then Schwarzenegger would have to decide how hard to push. The governor bucked Bush or powerful Republicans on two notable issues: Schwarzenegger backed a California law that would limit greenhouse-gas emissions, and he lobbied Congress so that California could continue to regulate emissions from lawn-care equipment.

“We have the authority to ask the federal Environmental Protection Agency for waivers that allow our rules to be different from theirs,” said Jerry Martin, spokesman for the Air Resources Board. “But we also have asked for waivers and not gotten them. One of the toughest jobs is getting the feds to do their part. Over and over again, the federal government has not stepped up to the plate.”

 

The virtue of the AQMD rules, though contested, was never before the courts. The challenge was over the AQMD’s regulatory authority, because it has little or no control over “mobile” sources of pollution, such as aircraft, cars, trains and ships. AQMD attorneys were always aware of this legal roadblock. That’s why the rules say nothing about setting emission standards or about telling manufacturers how to build engines. Instead, the agency limits what fleet operators can buy. A federal district court judge upheld this approach. So did the 9th Circuit Court of Appeals. The Bush administration, however, sided with industry in a friend-of-the-court brief.

During an hourlong Supreme Court hearing in January, it was obvious that Justice Scalia leaned against the AQMD, said one observer. It also was evident that Justice David Souter (the lone dissenter) inclined toward the agency’s view. It was less clear how other members of a rather “disengaged” court would cleave, said the witness, who asked not to be named.

“The manufacturer’s right to sell federally approved vehicles is meaningless in the absence of a purchaser’s right to buy them,” wrote Scalia for the eight-member majority. “If one State or political subdivision may enact such rules, then so may any other; and the end result would undo Congress’ carefully calibrated regulatory scheme.”

The remark about Congress’ “carefully calibrated regulatory scheme” elicited snickers among cynics, given the influence of intense industry lobbying on a pro-business Republican Congress and President Bush. One recent calibration was to push back clean-air deadlines from 2010 to 2021. It’s the environmental equivalent of Bush cutting taxes for the rich in the here and now, while amassing a budget deficit whose day of reckoning won’t arrive till after Bush leaves office.