Air board broke law in adopting last-minute, industry-friendly smog measure, judge rules

Southern California’s air quality board broke the law and “abused its discretion” when it adopted oil industry-backed changes to smog rules the day of a hearing without delaying the vote to give the public more time to comment, a Los Angeles County Superior Court judge has ruled.

Environmental groups sued after the South Coast Air Quality Management District board in December 2015 rejected a staff proposal to cut 14 tons of smog-forming nitrogen oxide pollution from oil refineries and other big facilities and instead adopted an alternative Western States Petroleum Assn. plan to cut 12 tons per day, and more slowly.

Those amendments to the district’s long-running cap-and-trade program for smog-forming pollution, called the Regional Clean Air Incentives Market, or RECLAIM program, were submitted the morning of the hearing by board member Shawn Nelson, an Orange County Supervisor, and approved hours later on a 7-5 vote.

Judge Amy D. Hogue ruled that the air board violated state law by approving substantial changes to the rules without allowing additional comments and arguments to be presented at another hearing. The decision voids the air board’s determination that no further hearing or comment was needed, returning the matter to the district for further proceedings but leaving the rules in place in the meantime.

The air district disagrees with the ruling and will evaluate its response, spokesman Sam Atwood said. “We think our board acted completely within its authority,” Atwood said.

Environmentalists said the ruling would make it harder for industry lobbyists to push through last minute-changes that weaken regulations and deter air regulators from making “backroom deals” without notifying the public.

“It’s a procedural victory, but a victory for people breathing nonetheless,” said Adrian Martinez, an attorney for the environmental nonprofit Earthjustice, which filed the suit.

In the March 2016 lawsuit, Communities for a Better Environment, the Center for Biological Diversity, the Natural Resources Defense Council and the Sierra Club said the last-minute changes made the program too weak to adequately cut smog across Los Angeles, Orange, Riverside and San Bernardino counties, where some of the nation’s worst ozone and fine-particle pollution triggers health problems including asthma, heart disease and premature deaths.

In court proceedings, air district attorneys argued that the board made only “small adjustments” to the proposed regulation that were not significant enough to trigger another hearing and more public comment. They also pointed to a disclaimer in a public notice about the rule that the board “may make other modifications.”

The Western States Petroleum Assn., which joined the air district in opposing the lawsuit, argued that the public had enough time to comment on the proposal because Nelson introduced the changes early in the Dec. 4 hearing and before the public comment period. The association also noted that environmentalists failed to request that the matter be continued at that time.

The judge rejected those arguments from the air district and the oil industry.

Western States said it was reviewing the ruling.

The effect of the decision remains uncertain. In March, the air-quality board voted to accelerate reductions in smog-forming emissions under the credit-based RECLAIM program, then phase it out and replace it with with traditional “command and control” regulations that set emissions rules for each piece of equipment.

The district’s market-based program to reduce nitrogen oxide pollution, established in 1993, is favored by industry because of the flexibility it offers refineries, power plants and other major facilities, which comply using tradeable pollution credits.

But in recent years the program came under attack from state regulators, lawmakers and environmental groups, who blamed an oversupply of pollution credits and other problems for failing to achieve promised pollution reductions and allowing refineries to avoid upgrading their emissions controls.

The details of how the program will end are still being worked out.

Atwood said air district staff held two meetings “with dozens of stakeholders this afternoon on rule amendments that will phase out RECLAIM and transition it to a command-and-control program.”

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