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

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

“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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