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Air District Rule Not Exempt From CEQA, Court Decides

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. Rather, the court concluded that opponents of the rule had presented evidence the rule could actually increase air pollution, harm plants and wildlife, and induce development.

Run by representatives of member cities and counties, the air district covers much of San Bernardino County and eastern Riverside County. More than two years ago, the air district adopted Rule 1406. Although the rule was complicated, it essentially permitted new emitters of particulate matter (PM 10, or material that is no more than 10 microns in size) to offset their emissions on a one-to-one basis by paving dirt and gravel roads. The district employed a Class 8 exemption from California Environmental Quality Act (CEQA) review. That categorical exemption applies to regulatory agency actions "to assure the maintenance, restoration, enhancement, or protection of the environment."

The groups California Unions for Reliable Energy and Center for Biological Diversity sued, arguing the rule did not qualify for a CEQA exemption because of the potential impacts of paving the 5,000 miles of unpaved roads within the district. The district said that any potential environmental impacts were highly speculative and unknown, and that any potential road paving would itself be subject to CEQA review. Riverside County Superior Court Judge Harold Hopp found that substantial evidence supported the exemption, and he ruled for the district.

The Fourth District Court of Appeal, Division Two, took a far different view of the evidence. The court found that the district based the exemption as much on logic as on evidence, and the logic was questionable.

Wrote Justice Betty Ann Richli, "The District reasoned, in part, that ‘Rule 1406 is positive to the environment as it will encourage additional road paving with commensurate reduction in particulate emissions from unpaved road dust entrainment.' This overlooks the fact that Rule 1406 merely provides for road paving as an offset for new, increased PM 10 emissions. Moreover, it does so in a one-to-one ratio. Thus, even assuming that (1) road dust is environmentally indistinguishable from other PM 10 and (2) road paving itself has no deleterious environmental effects, the net effect is, at best, a push. And if either of these assumptions is false, the net effect would be negative."

The court noted that the groups opposed to the rule – who received amicus assistance from the attorney general's office during the litigation – submitted 86 pages of comments based on expert analysis. The groups argued that there is a difference between coarse road dust kicked up at ground level and the new sources of PM 10, which would mostly likely be power plants emitting much finer PM 2.5 (no more than 2.5 microns in size) from tall stacks at high velocity. The tinier particles are considered much more hazardous to human health, and their emission by way of tall stacks makes them a regional air issue. The groups also cited a letter from the California Air Resources Board that stated, "We believe there is no technical justification for allowing PM emission reductions from road paving to offset PM 10 increases due to natural gas combustion." The groups further argued that paving roads would lead to more and faster traffic, resulting in road kill of wildlife and habitat loss. And they contended that additional paved roads would encourage new development.

The district maintained this was all speculation and the link between rule adoption and actual environmental impact was remote. The court, however, was unconvinced and pointed to the City of Victorville's endorsement of the rule so the city could use the paving of 1.37 miles of road to offset emissions from a new power plant.

"The administrative record contains no evidence, as opposed to the district's bare assertion, that the environmental effects of the adoption of Rule 1406 are speculative," Richli wrote. "Basically, plaintiffs showed that trading a pound of PM 10 from road dust for a pound of PM 10 from combustion would mean that the resulting PM 10 would stay in the air longer, spread more widely and be more likely to cause disease. Also, the very act of road paving would produce still more PM 10 – mostly made up of PM 2.5 – while also having adverse biological and growth-inducing effects. The only thing that was even arguably speculative about these effects was their quantity."

The fact that future road paving would be subject to environmental review was no basis for a categorical exemption, the court added. Besides, as the rule was written, the district would have little discretion to reject road paving as a mitigation measure, the court noted.

In sending the case back to Superior Court, the Fourth District said the district could still use a Class 8 categorical exemption if it provides substantial evidence to support the exemption.  

The Case:
California Unions for Reliable Energy v. Mojave Desert Air Quality Management District, No. E046687, 2009 DJDAR 15531. Filed October 30, 2009.
For CURE: Marc Joseph, Adams, Broadwell, Joseph & Cardozo, (650) 589-1660.
For the district: Michelle Ouellette, Best, Best & Krieger, (951) 686-1450.