A San Joaquin Valley Unified Air Pollution Control District permitting process for dairies has been rejected by the Fifth District Court of Appeal because the district did not conduct an adequate assessment of public health impacts.

The decision marks a significant victory for environmental justice advocates and clean air supporters in the San Joaquin Valley who argue the air district has not done enough to regulate air pollution from the region's large-scale dairies. They insist dairy operators should alter feed, better manage animal waste and even house livestock indoors so that emissions may be captured.

In 2003, state lawmakers approved a series of bills intended to force improvements to the San Joaquin Valley's deteriorating air quality. Specifically, SB 700 (Florez) eliminated agriculture's exemption from air quality regulations and required the air district to adopt and implement a rule requiring confined animal facilities to reduce the emission of air contaminants. The district followed up by adopting Rule 4570, which established a permitting process for large confined animal facilities – essentially dairies. The rule called for controlling emission of volatile organic compounds (VOCs), a precursor to ozone, with various management practices.

The group Association of Irritated Residents (AIR) sued, arguing the district failed to perform a health effects analysis of the permitting process, failed to address ammonia and other air pollutants, and failed to adopt a rule actually reducing VOC emissions. Several large dairy organizations intervened in the lawsuit on behalf of the air district, and Fresno County Superior Court Judge D. Tyler Tharpe ruled against AIR. The Fifth District overturned the ruling, finding a necessary public health assessment to be completely missing.

The air district and dairy organizations pointed to a district staff report and estimates of how many tons per year of VOC the permitting process would reduce. The court was unmoved.

"If the goal is healthier air, the district has not shown whether it has taken steps toward reaching that goal," Acting Presiding Justice Rebecca Wiseman wrote for the unanimous three-judge panel of the Fifth District. "For example, the district claims that rule 4570 will reduce VOCs by 7,563 tons per year; however, it makes no statement about how this will impact public health concerns.

"The report discusses how much the changes in feed and waste management will cost facilities and identifies a number of possible controls which have been rejected because of higher cost. If costs are going to justify mandating lesser controls instead of tougher ones, the public is entitled to know what the cost of this decision will be to public health," Wiseman continued. "If the available science is insufficient to justify more expensive, tougher environmental controls, the public is entitled to know this as well."

The court rejected AIR's other contentions, including the argument that the district must regulate dairy ammonia emissions. The 2003 legislation was intended to address ozone and ozone precursors and not all air pollutants from agriculture, the court ruled.

The Case:
Association of Irritated Residents v. San Joaquin Valley Unified Air Pollution Control District, No. F053956, 08 C.D.O.S. 14250, 2008 DJDAR 17107. Filed November 19, 2008.
The Lawyers:
For AIR: Luke Cole, Center on Race, Poverty & the Environment, (415) 346-4179.
For the district: Philip Jay, SJVUAPCD, (559) 230-6033.
For the dairies: David Cranston, Greenberg, Glusker, Fields, Claman & Machtinger, (310) 553-3610.