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.
A decision by the Coastal Commission not to intervene in a dispute between Malibu property owners was upheld by the Second District Court of Appeal. The court affirmed the Commission's refusal to conduct a hearing on a proposed beachfront house that was approved by the City of Malibu but opposed by the next door neighbors. The court also found that a State Lands Commission failure to investigate the project's potential impact on public tidelands was not enough to disturb the city's approval.
The Coastal Commission has no jurisdiction over a fence at the base of a coastal bluff in Torrance because a 1988 boundary agreement among state entities and landowners authorized the fence, the Second District Court of Appeal ruled.
In the latest installment in a feud between neighboring Big Sur property owners, the Sixth District Court of Appeal ruled that the Coastal Commission did not make the proper findings for approving a house in an environmentally sensitive area.
News from around the state: Already a very poor region, the Central Valley's problems have become worse because of the recession; two Sacramento planning department have been put on leave because of a building permit scandal; the California Redevelopment Association has sued the state for taking $2 billion of tax increment; federal agencies agree to speed the review of new electricity transmission corridors.
Claims that Sacramento County violated the California Environmental Quality Act while approving a commercial development have been dismissed by the Third District Court of Appeal because the project opponent did not submit a written request for a hearing within 90 days of filing a lawsuit.
The attorney for opponent Forster-Gill, Inc., argued that a telephone call to the court clerk within the 90-day period was adequate, but the appellate court disagreed, ruling that the law "plainly contemplates a written request that can be, and is, filed with the court."
A state appellate court has upheld the California Coastal Commission's denial of a development permit for a small mixed-use project in Morro Bay.
The court rejected developer Dan Reddell's arguments that the commission violated his due process and equal protection rights, and that its decision was a regulatory taking of property. Instead, the Second District Court of Appeal ruled that substantial evidence supported the commission's finding that Reddell's project was inconsistent with Morro Bay's local coastal plan (LCP).
A state appellate court has thrown out an Inyo County general plan amendment that the county argued was nothing more than a clarification of a longstanding policy.
A unanimous three-judge panel of the Fourth District Court of Appeal, Division Two, concluded that the amendment was more than a mere clarification and that the county should have completed an environmental impact report before approving the amendment.
A City of West Hollywood moratorium on new multi-family housing development has been declared invalid by the Second District Court of Appeal. The court ruled that the city had not made required findings for the moratorium.
The Ninth U.S. Circuit Court of Appeals has set back a plan to develop the country's largest solid waste landfill near Joshua Tree National Park. The court ruled that the environmental analysis for the project was inadequate and that the Bureau of Land Management undervalued land it would provide to the landfill developer.
A state appellate court has struck down a California Environmental Quality Act exemption for an air district rule permitting new power plants to offset emissions by paving roads. The court found that the Mojave Desert Air Quality Management District did not have adequate evidence to support its finding that the rule could not have a negative impact on the environment.
A developer is not entitled to reimbursement or damages from a consultant hired by a local government to complete an environmental impact report, the First District Court of Appeal has ruled. Even when the consultant fails to complete an EIR in a timely manner, the consultant owes no contractual duty to the developer that paid for the consultant, the court concluded.