When it comes to cleaning up the dirty air that hovers over American cities, the words "infeasible," "expensive," and "technically difficult," may become endangered excuses.
In a landmark ruling that environmentalists say will add enforcement teeth to air-quality programs coast to coast, a California judge has told the nation's largest air-quality district that "none of the above" are defensible in avoiding obligations under the federal Clean Air Act.
The finding, in a year-old lawsuit filed by environmental groups, is expected to establish precedent for dozens of other lawsuits in several states. US District Judge Harry Hupp told the state Air Resources Board "they have a duty" under that 25-year-old congressional statute to implement smog controls adopted four years ago, even though air-quality district officials later dropped some of the controls as unnecessary.
"This is a resounding victory for environmentalists all over the country," says Gail Ruderman Feuer, senior attorney at the Natural Resources Defense Council, one of the litigants. "In the long history of local agencies ... which make commitments and then renege on them, this is a strong signal that those commitments will not be taken lightly."
In southern California, which for decades has had the nation's dirtiest air, the lawsuit that led to the ruling came three years after both the state agency and local agency, the South Coast Air Quality Management District (AQMD), adopted a strict new smog plan. In 1994, the two agencies narrowly avoided federal takeover of an existing region-wide smog program by expanding plans to reduce pollution from paints and cleaning solutions, restaurants, gas stations, bakeries, and even backyard barbecues.
But three years later, in 1997, the agencies dropped 32 of about 77 such measures. This revised plan would allow about 200 tons more per day of airborne pollutants than the original plan had. The agencies argued in the lawsuit, among other things, that some of their initial estimates of pollutants were wrong and that some of the solutions they agreed to are too expensive.
Going on new information
According to AQMD attorney Barbara Baird, two examples were key. In one instance, the 1994 plan called for reducing pollutants from area restaurants from 18 tons to 11 tons annually. But after the plan was approved, new measuring methods determined that only 1.1 tons of pollutants were being emitted to begin with. "When you find out that your calculations were wrong, it becomes impossible to live up to your agreement," says Ms. Baird. Noting that the new measuring technique was not available when the plan was implemented, she says, "We feel new circumstances render our duty to meet the original obligation infeasible."
In another instance, Baird says officials decided to drop requirements on the amount of volatile organic chemicals in graphic-arts inks because the costs to businesses were too exorbitant: about $100,000 per ton of pollution reduced compared with about $15,000 per ton for other chemicals in the plan.
Because of such changes and costs, AQMD officials say they have no intention of readopting the dropped measures until they are forced to by injunction or until the judge rules on appeal. They say they have submitted alternatives to the Environmental Protection Agency but have been stalled by EPA inaction.
Stuck in the middle
"We feel we are caught in the middle and that southern California businesses are caught in the middle," says Baird.
But EPA officials say they have assessed the AQMD's alternatives and have rejected them. Moreover, a compromise plan that EPA and AQMD officials approved in June was rejected by the AQMD board. "We are very concerned about the AQMD's retreat from its duties under the 1994 plan," says San Francisco EPA spokesman David Jesson. "We hope we can get them back to the table to discuss alternatives, but we have no intention of approving their 1997 revisions as they now stand."
For the moment, all legal action awaits a hearing scheduled for early next year. If no acceptable compromise comes before then, environmentalists say they will seek an injunction forcing the two agencies to conform to the court's wishes. In the meantime, they say southern California's concerted attempts to clean up area skies are in danger of repeating errors of the past.
"L.A. is still cleaner than it was 30 years ago, which is a sign of great progress," Ms. Feuer says. "But without the courts, we will begin to backslide. The region and the nation can't afford that right now."
Noting that the federal EPA last year adopted new air standards that will force states to devise new plans, experts say the court's tough stance on enforcement is paramount.
"This is a nice precedent that other agencies around the country can point to in trying to get courts to enforce plans in their own cities," says Robert Lutz, a professor of environmental law at Southwestern University School of Law in Los Angeles.