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.
“We don’t think it’s a good message to send that we have 17 years to reach the target,” said Sam Atwood, spokesman for the Aqmd. “Because 2010 was just around the corner, it really helped to keep everyone focused on the goals.”
Governor Schwarzenegger, in contrast, stuck with the previous target: cutting smog in half by 2010. That’s also been the mark for the AQMD and the state Air Resources Board. Schwarzenegger’s strategy includes finding permanent funding for incentive programs that get rid of high-polluting older vehicles. Industry likes this approach, though there’s been resistance whenever a particular entity is proposed to pay the cost.
Though hopeful of support from Schwar-zenegger, the AQMD is prepared to lift itself off the floor and don gloves for another round of legal sparring.
“We think there still is a window left open to leave in place our fleet rules, especially our rules for fleets owned by public agencies,” said the AQMD’s Atwood.
For one thing, the court signaled that a publicly owned fleet might fall outside its analysis. And most vehicles governed by the rules are in public fleets, such as transit buses owned by cities or transit agencies. And, added Atwood, the rules might still apply for privately owned fleets that do public work, such as a garbage hauler that contracts with a city. Said Atwood: “We think it’s possible that all fleets” will continue to fall under the rules.
So it’s back to court in the near future, with all rules remaining in force until then.
Industry, too, is prepared to rejoin the litigation. Diesel proponents have accepted a mandate to get cleaner, but also want one consistent standard, said Engine Manufacturers spokesman Joe Suchecki, “so we can build one engine that can be sold all over the world.”
Clean diesel offers an excellent combination of smog reduction and economic efficiency, said Anita Mangels, spokesperson for the Sacramento-based Western States Petroleum Association.
But critics contend that diesel’s best just isn’t yet good enough. Diesel engines are responsible for about 70 percent of the total cancer risk from air pollution in Southern California, according to research cited by the AQMD. Overall, Southern California’s air quality has improved substantially in recent decades, but it’s still the nation’s most unhealthful, and air quality may be declining.
The tough AQMD rules instilled needed incentives to get manufacturers to improve their product, said Gail Ruderman Feuer, lead counsel for environmental groups that sided with the AQMD. Other allies included assorted cities, counties and 16 states, California among them. California’s involvement has been managed by the office of state Attorney General Bill Lockyer during both the Davis and Schwar-zenegger administrations.
The fleet rules, adopted in 2000 and 2001, have made a difference. Sixty percent of the region’s transit buses now run on clean fuel. Fleet operators have purchased more than 5,500 clean-fuel heavy-duty vehicles and 3,400 low-emission passenger vehicles. In many instances, state funding has offset the cost difference between, say, natural-gas vehicles and diesel.
Achieving substantially cleaner air, however, will require both state and federal intervention, given that the AQMD has no regulatory authority over the sources of about 80 percent of the region’s smog. This, once again, is where Schwarzenegger and Bush enter the picture.
“This governor has been willing to take a stand different from the Bush administration,” said Ruderman Feuer. “This is precisely the kind of issue where the governor should take a stand to protect the people of California.”
Said the Sierra Club’s Magavern: “The federal government is a big part of the problem. Which is why we need to defeat Bush. And it’s also why Arnold Schwarzenegger needs to go to bat for us in Washington.”
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