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AIR QUALITY

Shute, Mihaly & Weinberger LLP represents public entities and community groups on air quality issues. The firm regularly works with regional air quality management districts and has expertise in the state and federal Clean Air Acts.

• In 2004, the firm successfully defended the South Coast Air Quality Management District in a challenge by the Western States Petroleum Association to a District regulation limiting emissions of particulate matter (PM10) and ammonia from oil refineries in the Los Angeles air basin.  We defended the District's evidentiary basis for the regulation, which was based on a complex and voluminous administrative record, and turned away a variety of claims challenging the procedural adequacy of the rulemaking.   

• The firm represents the South Coast Air Quality Management District in defending the District’s “Clean Fleet Rules,” which improve air quality by ensuring that more of the motor vehicles on Southern California roads are low emission or alternative fuel vehicles. The Engine Manufacturers Association and the Western States Petroleum Association filed suit in November, 2000 alleging that the Rules were preempted by the federal Clean Air Act because they constituted impermissible emissions standards and would force manufacturers to create an entirely new “third car”. The district court rejected these arguments and the Ninth Circuit affirmed with a one-sentence opinion adopting the opinion of the district court. The U.S. Supreme Court granted the trade associations’ petition for certiorari in June of 2002. The firm continues to represent the District in proceedings before the Supreme Court where the case will be argued in December of 2003. Click here to review a copy of the District Court opinion. Engine Mfrs. Ass’n v. South Coast Air Quality Mgmt. Dist., 158 F. Supp. 2d 1107 (C.D. Cal. 2001), aff’d, 309 F.3d 550 (9th Cir. 2002), cert. granted, 71 U.S.L.W. 3758 (U.S. June 9, 2003) (No. 02-1343).

• The firm represents the South Coast Air Quality Management District in the defense of other air quality regulations adopted by the District to reduce air pollution emissions. For example, working with District Counsel, the firm has defended challenges to air emissions limitations on architectural coatings, aerosol coatings, hydrogen fluoride, and barbecue charcoal lighter materials and related products.

• The firm serves as outside counsel to the Bay Area Air Quality Management District Hearing Board for all matters related to its mission. The firm advises the Hearing Board on legal issues related to permit appeals, variance requests, and other matters. The scope of the firm’s representation includes the interpretation of the governing air quality statutes and regulatory requirements as well as compliance with the Brown Act, conflict of interest laws, the Public Records Act, and the Board’s administrative procedures.

• The firm represented the Rodeo Citizens Association in proceedings before the Bay Area Air Quality Management District and the City of Hercules relating to the Pacific Refining Company’s operations, and negotiated terms and conditions to Pacific’s operating permit in order to minimize toxic air contaminants and odor emissions. The firm also negotiated two Good Neighbor Agreements to protect the Rodeo Citizens from and compensate them for air quality and other health and safety impacts caused by refinery operations. The refinery ultimately ceased its operations and was dismantled.

• The firm represented the County of Santa Cruz in connection with its regulation of a sand quarry operation. The firm worked extensively with the Monterey Bay Unified Air Pollution Control District and the County’s air quality consultant in analyzing impacts from the quarry operation, particularly concerns regarding PM10 and crystalline silica emissions.

• The firm represented the Kings County Citizens for a Healthy Environment in litigation in the Kings County Superior Court and California Court of Appeal challenging the adequacy of an environmental impact report (EIR) prepared for a coal fired cogeneration facility. Key issues included the scope and adequacy of the EIR’s cumulative impacts analysis and alternatives analysis, as well as the project’s consistency with the City of Hanford’s general plan. Petitioners prevailed on the majority of their CEQA claims and their general plan claim. (Kings County Farm Bureau v. City of Hanford, 221 Cal.App.3d 692 (1990).) The parties eventually settled the case and the cogeneration facility now operates on a mixture of natural gas and a low pollution emitting form of petroleum coke.

• The firm, in association with Professor Daniel P. Selmi, represented the Monterey Bay Air Pollution Control District before the California Supreme Court in defense of its rule governing emission of toxic air contaminants enacted pursuant to the Tanner Act. The Court upheld the rule, finding that the Tanner Act permits districts to regulate a substance before the State Air Resources Control Board has identified the substance as a toxic air contaminant. The Court also held that the rule involved no improper delegation of authority by the Air Pollution Control District to its air pollution control officer. (Western Oil and Gas Association v. Monterey Bay Air Pollution Control District, 49 Cal.3d 408 (1989)).

• The firm works extensively with technical experts regarding the modeling of air quality impacts.  The firm has assisted local agencies in evaluating the effects on local and regional air quality of proposals including airport projects and other major development projects, and has worked with technical experts to evaluate and submit formal comments on the air emissions modeling, health risk assessments, and other air quality analysis of publicly circulated environmental documents and Clean Air Act conformity determinations.