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Clean Air vs. Cancer

Just when the federal government, living large on the perceived political capital of Bush’s second term, seemed to be looming over California ready to snuff out its every attempt at cleaning the air or protecting residents from impending toxic-cloud events, a federal court has re-affirmed the South Coast Air Quality Management District’s right to set air-quality standards for new fleet vehicles.

Last Friday, U.S. District Judge Florence-Marie Cooper decided that the AQMD’s rules governing the purchase of clean-air fleet vehicles, such as school buses, trash trucks and street sweepers, did not overstep the boundaries of the Clean Air Act. Cooper, responding to a challenge last spring from the U.S. Supreme Court, which remanded the case back to the lower court for clarification, ruled that in requiring fleet operators to purchase the least-polluting vehicles on the market, the AQMD was not acting as a regulatory authority so much as exercising its market rights. The victory was made sweeter by the fact that the Bush administration, which increasingly neglects to enforce existing clean-air laws, had joined forces with the Engine Manufacturers Association (EMA) and Western States Petroleum against the AQMD.

“The decision shines a light on the hypocrisy of the Bush administration, which purports to advocate ‘states’ rights’ and ‘clear skies,’ but in fact stood in the way of clean air, public health and states’ rights by supporting engine manufacturers and petroleum companies in this case,” said Daniel Hinerfeld, spokesperson for the Natural Resources Defense Council, a co-defendant in the lawsuit. “The local government agencies that operate seaports and airports now have a legal basis for requiring the cargo and transportation companies that lease their facilities to use cleaner engines and fuels.”

The AQMD initially adopted the new rules in 2000, after its Multiple Air Toxics Exposure Study (MATES-II), which measured exposures to 30 pollutants at 22 Southern California locations, revealed that “mobile-source compounds,” especially those associated with diesel exhaust, were responsible for 70 percent of the local cancer risk. Ironically, given the federal government’s opposition, the new clean-air fleet rules would also help the agency comply with EPA standards for fine particulate matter and nitrogen oxide, or NOx, the precursor to the ozone that currently triggers asthma in so many Southern Californian lungs.

“One of the arguments we made in court is that you cannot tell states they have an obligation to comply with certain rules and then tie their hands to keep them from achieving those rules,” said Gail Feuer, an attorney for the NRDC. And while “the rubric of the decision was about market rights,” with the South Coast AQMD free to impose standards on fleets, “both of [the EPA’s air-quality] goals will be met.”

Not surprisingly, the ruling has incensed petroleum lobbyists, the EMA and diesel advocates, who say they’ve worked hard with the California Air Resources Board to invent new ways of cleaning up diesel exhaust with little reward. “It’s really baffling to understand how an industry can be pushed so hard and deliver so much and now be told it can’t use it,” said Alan Schaeffer, executive director of the D.C.-based Diesel Technology Forum, a nonprofit advocacy group. “We’re in a situation now where, starting in 2007, the lower-emission engines with particulate filter traps will be very nearly as clean as natural gas at a fraction of the cost. But now Southern California says, ‘Sorry, all we want is natural gas,’ so now none of that matters.

“President Bush is talking about clean diesel; the secretary of energy, Samuel Bodman, is talking about it,” Schaeffer said. “But I guess not even a Supreme Court decision holds a lot of water in California. There’s a real spirit of independence out there.”

Because the EMA adopted a “facial challenge” strategy — it chose to attack the AQMD’s right to impose standards not simply on private fleets but also on public fleets with government contracts — the court’s decision implies that the AQMD can require private fleets in Southern California to comply with the clean-air rules, which prohibit acquisition of new diesel vehicles. That’s a significant chunk of the “specialty application” diesel market, said Jed Mandel, president of the Chicago-based EMA, which represents the companies that manufacture diesel engines — the same manufacturers, Mandel noted, that make natural-gas engines. And he worries that the new rules will inhibit investment in what he calls “clean diesel” technology: engines running on ultra-low-sulfur diesel fuel with after-treatment technologies that minimize particulate-matter emissions and NOx.

“One of the problems with the South Coast fleet rule is that it doesn’t have a performance basis at all,” Mandel said. “And in many cases diesel engines are lower-emitting than natural-gas engines. But if our manufacturers can’t sell diesel technology in California, it obviously reduces the number of opportunities they have to recoup their investment in ultraclean technology.

“The more segmented the market becomes — if it’s the whole country but California or the whole country but the South Coast — the more investments in clean-diesel technology are going to dry up,” Mandel complained. “All the South Coast has done is ban one technology.”

That’s not quite true, according to the AQMD, which has argued all along that its rules impose neither an emissions nor a technology standard, but simply require fleet operators to buy the cleanest-burning vehicles on the market. “The rules look to natural gas as a benchmark as an alternative fuel, because natural gas is a naturally clean fuel,” said Sam Atwood, spokesperson for the agency. “That’s why AQMD has required for a decade that industries burn natural gas and not coal.”

But “there’s nothing in the rules that says diesel is prohibited,” Atwood insisted. “There’s nothing in the rules that says a vehicle must meet a certain emissions standard. But to be considered ‘alternative fuel,’ a vehicle has to be as clean as natural gas for all pollutants emitted.”

That includes biodiesel, which has low emissions for some pollutants, but is still higher in ozone-producing NOx. Even ordinary diesel produces less carbon monoxide than a regular gas engine, but still spews excessive NOx and fine particulate matter. Unfortunately for the diesel manufacturers, those pollutants cause the worst health problems.

Other advocates for clean air hope the ruling bodes well for other pending litigation of a similar nature, such as the Alliance of Automobile Manufacturers’ suit against the California Air Resources Board, which has mandated a significant reduction in greenhouse-gas emissions from cars and trucks by 2009. While the two cases have significant differences — the lawsuit against CARB challenges California’s long-standing exemption from the part of the Clean Air Act that prohibits state governments from passing their own, more stringent air-quality laws; Friday’s ruling “re-affirms a local government’s right to use its purchasing power to clean up the air,” Gail Feuer explained — there are also similarities. “[Judge Cooper] has now said very clearly that the Clean Air Act does not define a broad scope of pre-emption,” Feuer said. “It was written to allow this kind of exemption.” And while both sides seem to anticipate that the battle isn’t over — the EMA could appeal in the 9th Circuit, and Mandel hasn’t ruled it out — the decision “is certainly the best news we’ve heard in a year,” said Feuer. “And in the Supreme Court in particular, it has not been a good year.”

 

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