| Aug. 21, 2007 In a major
victory for clean air in the Southland, a federal appeals court for the
second time in five years has upheld virtually all applications of the South
Coast Air Quality Management District’s clean fleet rules.
“This is great news for all residents of Southern California and
especially for children, the elderly and those with heart and lung disease
who are hardest hit by the region’s poor air quality,” said William A.
Burke, Ed.D., AQMD’s Governing Board Chairman.
“I commend the persistence of my fellow board members to sustain the
fight for these important rules. We need these rules now more than ever to
help us achieve strict federal air quality standards for particulate
pollution by 2014,” he said.
The U.S. Court of Appeals for the Ninth Circuit on Monday issued a
33-page decision that largely upheld AQMD’s fleet rules. The decision for
the first time affirmed the application of the “market participant doctrine”
to the federal Clean Air Act.
Under the market participant doctrine, when government agencies, such as
AQMD, purchase goods and contract for services, their actions are not
subject to preemption by federal statutes, such as the federal Clean Air
Act. Further, as the court held in this case, the market participant
doctrine applies not just when agencies seek to obtain the best price for
goods and services, but also when they seek to further other goals, such as
reducing or preventing air pollution.
The court’s affirmation of state and local governments’ authority to
improve air quality through their actions as market participants could
significantly enhance cleanup efforts nationwide, including those at the
ports of Los Angeles and Long Beach.
In the opinion written by Ninth Circuit Judge William A. Fletcher, the
court upheld the AQMD’s fleet rules to the extent that they apply to state
and local government purchase and contracting decisions. The court remanded
the case to the U.S. District Court to determine whether any provisions of
individual fleet rules are outside the scope of the market participant
doctrine.
“The natural gas buses and garbage trucks on the streets every day aren’t
there by chance. They exist because of our victories in this litigation,”
said David Pettit, a senior attorney with the Natural Resources Defense
Council (NRDC) and director of its Southern California Air Program. “We
joined this fight seven years ago because we recognized the importance of
the fleet rules for public health.”
The NRDC along with the environmental organizations Coalition for Clean
Air, Communities for a Better Environment, Planning and Conservation League
and the Sierra Club intervened in the lawsuit on AQMD’s behalf. The state
Attorney General’s office filed a friend-of-the-court brief in support of
AQMD.
Fleet Rules Background
AQMD's Governing Board adopted its fleet rules in 2000 and 2001 following
a landmark AQMD study showing that about 70 percent of the total cancer risk
from air pollution was due to diesel exhaust. The seven fleet rules target
primarily diesel-powered vehicles, including transit buses, school buses,
trash trucks, airport shuttles and taxis, street sweepers and heavy-duty
utility trucks. The rules generally require fleet operators to buy
currently manufactured clean-fueled models when they replace vehicles or add
to their fleets of 15 or more vehicles. As a result of the District’s
rules, more than 6,000 clean-burning heavy-duty vehicles, powered by natural
gas and other clean fuels, have been added to the region's fleets.
In August 2000, following the AQMD Governing Board's adoption of the
first six fleet rules, the Engine Manufacturers Association (EMA) filed suit
in U.S. District Court, claiming the rules were preempted because they
violated Section 209(a) of the federal Clean Air Act. The Western States
Petroleum Association intervened in the case on behalf of EMA.
The District Court ruled against EMA in August 2001. EMA appealed to the
U.S. Court of Appeals for the Ninth Circuit, which upheld the district court
decision in October 2002. EMA then appealed to the Supreme Court of the
United States, which agreed to hear the case in June 2003. The Bush
Administration argued in favor of the engine manufacturers and oil companies
and against AQMD in oral arguments before the court in January 2004.
In April 2004, the Supreme Court reversed the lower court’s decision and
held that purchase mandates, such as the fleet rules, may be preempted under
Section 209 of the Clean Air Act. The Court went on to note, however, that
its holding did not resolve the validity of the fleet rules and it remanded
the case to the District Court to consider whether some of the fleet rules
could be characterized as internal state purchase decisions, and, if so,
whether they would be preempted by the federal Clean Air Act.
Attorneys for AQMD argued that most applications of the fleet rules fall
under a so-called market participant exemption and therefore are not
preempted by the federal Clean Air Act.
In May 2005, the District Court ruled that the fleet rules, at least as
applied to state and local governments, were valid procurement requirements
and were not preempted by the Clean Air Act. EMA appealed for a second time
to the Ninth Circuit, resulting in this week’s decision upholding AQMD’s
fleet rules as they apply to state and local governments and the private
entities with which these agencies contract for services.
AQMD is the air pollution control agency for Orange County and major
portions of Los Angeles, San Bernardino and Riverside counties.
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