Pollution Controls Can Be Based on Nonexistent Technologies, Rules California Court

Southern California air pollution authorities may require pollution controls based on technologies that do not exist but may be reasonably anticipated, the California Supreme Court ruled unanimously.
by | June 28, 2012
 

By Maura Dolan, Los Angeles Times

Southern California air pollution authorities may require pollution controls based on technologies that do not exist but may be reasonably anticipated, the California Supreme Court ruled unanimously Monday.

The state high court decision was a victory for environmental agencies that set standards intended to spur the development of new, greener technology, though manufacturers warned that consumers may be forced to buy inferior products as a result.

Justice Goodwin Liu, writing for the court, said pollution standards that depend on future advances are permissible as long as the new technology is "reasonably anticipated to exist by the compliance deadline."

The ruling came in a lawsuit brought by paint manufacturers against the South Coast Air Quality Management District, which regulates pollution from sources other than vehicles.

The American Coatings Assn. Inc., challenging standards that limited pollution-causing substances in paints and other coatings, contended that new rules should rely on the best available technology. The regulations that prompted the suit were proposed in 1999, amended in 2002 and required full compliance by July 2006.

The court rejected contentions that the requirements would drive manufacturers out of the Southern California market because they would be unable to reformulate their products quickly enough. It noted that none of the manufacturers had applied for a variance because of an inability to comply.

Jeffrey B. Margulies, an attorney for the paint makers, said some manufacturers stopped selling in Southern California, conceding the market to inferior products.

"Generally, coatings of much lesser quality are being used," Margulies said. "There are instances where people are smuggling coatings into the district because they want the high-performance coating."

Loyola Law professor Daniel P. Selmi, who represented the air district, praised the court for overturning an appeals court ruling that would have limited regulations to existing technology.

"The district's mandate is to obtain health-based air quality standards, and it can't do that unless it is able to adopt rules that force the development of technology," Selmi said. The rules are now in effect, "and the sky hasn't fallen."

The industry group contended the district relied too much on product data sheets, rather than field testing, and overstated the expected breakthroughs in technology. The district insisted its data were reliable and pointed to extensive field and laboratory testing.

"These disagreements do not establish that the district's regulations were arbitrary, capricious, or entirely lacking in evidentiary support," Liu wrote.

Monday's decision ensures the district can continue to create new rules based on technological advances.

"It is going to be a much higher-stakes game in the future as they keep having to reduce emissions, " Margulies said.

(c)2012 the Los Angeles Times

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