National Ass'n of Home Builders v. San Joaquin Valley Unified Air Pollution Control District

Opinion by Judge B. FLETCHER; Partial Concurrence and Partial Dissent by Judge N.R. SMITH.

OPINION

In response to levels of pollution that violated national air quality standards, the San Joaquin Valley Unified Air Pollution District adopted “Rule 9510,” which requires development sites to reduce the amount of pollutants they emit. The National Association of Home Builders (NAHB) sued the District, claiming that Rule 9510 is preempted by the Clean Air Act. The district court held that Rule 9510 is not preempted. We affirm.

I.

A.

The residents of the San Joaquin Valley breathe “an air that kills.” 1 The air in the Valley contains dangerous levels of particulate matter and ozone pollution, substances that every year cause the deaths of many Americans, not to mention much cardiorespiratory disease. See, e.g., National Ambient Air Quality Standards for Ozone, 73 Fed.Reg. 16,436, 16,448 (Mar. 27, 2008); National Ambient Air Quality Standards for Particulate Matter, 71 Fed.Reg. 61,144, 61,154 (Oct. 17, 2006).

Under the Clean Air Act (often “Act”) and California law, Defendant San Joaquin Valley Unified Air Pollution Control District (“District”) promulgates and enforces…

concurring in part and dissenting in part:

Though I agree with the majority opinion that § 209(e)(1) of the Clean Air Act (“Act”), 42 U.S.C. § 7410 et seq., does not preempt Rule 9510 promulgated by the San Joaquin Valley Unified Air Pollution Control District (“District”), I respectfully dissent from Parts IV and V. In my view, Rule 9510 is preempted by § 209(e)(2) of Act because (1) the regulation does not qualify as an “indirect source review program” under § 110(a)(5), since it directly regulates construction equipment (which are direct emissions sources); and (2) the regulation creates an emissions control “standard” for construction equipment that has not been approved by the Environmental Protection Agency (“EPA”).

*741 I.

The Act authorizes state regulatory-agencies to adopt local “implementation plans” to effectuate national air standards set by the EPA. Id. § 7410(a). As a general matter, states regulate stationary sources of pollution while the EPA regulates mobile sources of pollution. See Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075, 1078-80 (D.C.Cir.1996).

Pursuant to § 110(a)(5) of the Act, the District adopted Rule 9510, which addresses “indirect sources” of…

Lisa Trankley, Office of the Attorney General, Sacramento, CA, for amicus curiae State of California.

Peter McVeigh, U.S. Department of Justice Environment and Natural Resources Division, Washington, DC, for amicus curiae Environmental Protection Agency.

Before: BETTY B. FLETCHER, SIDNEY R. THOMAS, and N. RANDY SMITH, Circuit Judges.

Opinion by Judge B. FLETCHER; Partial Concurrence and Partial Dissent by Judge N.R. SMITH.

B. FLETCHER, Circuit Judge:

In response to levels of pollution that violated national air quality standards, the San Joaquin Valley Unified Air Pollution District adopted "Rule 9510," which requires development sites to reduce the amount of pollutants they emit. The National Association of Home Builders (NAHB) sued the District, claiming that Rule 9510 is preempted by the Clean Air Act. The district court held that Rule 9510 is not preempted. We affirm.

The residents of the San Joaquin Valley breathe "an air that kills." [1] The air in the Valley contains dangerous levels of particulate matter and ozone pollution, substances that every year cause the deaths of many Americans, not to mention much cardiorespiratory disease. See, e.g., National Ambient Air…