W.M. Barr & Co. v. South Coast Air Quality Management District

*412 Opinion

In July 2010, the South Coast Air Quality Management District (the District) adopted “Rule 1143,” which required manufacturers of consumer paint thinner and solvent products to limit the use of ozone-forming volatile organic compounds (VOC’s) in their products in order to meet the District’s commitment under the federal Clean Air Act ( 42 U.S.C. § 7401 et seq.) and the California Clean Air Act (Health & Saf. Code, § 40910 et seq.). 1 The District believed that the adoption of Rule 1143 would result in manufacturers substituting acetone for VOC’s in their products, and prepared an environmental assessment under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.; CEQA) evaluating the fire hazard risks of substituted acetone, and proposing specific product labeling to alert consumers to the reformulation of products under Rule 1143. W.M. Barr & Company, Inc. (Barr), a manufacturer of paint thinners and solvents, challenged Rule 1143 on the grounds that (1) Rule 1143 was preempted by the Federal Hazardous Substances Act (FHSA; 15 U.S.C. § 1261 et seq.); (2) Rule 1143 was preempted by regulations simultaneously promulgated by California’s State…

I join in part III of the Discussion portion of the majority opinion and concur with the conclusions reached in parts I and II but not the reasoning behind them.

*436 By 2009, both the South Coast Air Quality Management District (AQMD) and California’s State Air Resources Board (CARB) were in the process of formulating regulations to reduce ozone-causing emissions by limiting the amount of volatile organic compounds in paint thinners and multipurpose solvents.

On March 6, 2009, the AQMD adopted “Rule 1143,” which required manufacturers of paint thinners and multipurpose solvents to limit the amount of volatile organic compounds in those products to 300 grams per liter by January 1, 2010, and 25 grams per liter by January 1, 2011. 2 The primary way to achieve these limits is to replace volatile organic compounds with acetone.

As required by the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.), the AQMD prepared and certified an environmental assessment before adopting Rule 1143, in which it considered, among other things, the increased risk of fire posed if manufacturers were to begin replacing volatile organic compounds in solvents and…