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SCCA Magazine |
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Federal appeals court upholds
“indirect source” rule
By Michael Lewis, Senior Vice President, Construction Industry Air Quality Coalition
As the Federal regulatory noose tightens
around the necks of local air quality control
officials, the search for ever more ways to
control emissions has stretched to the absurd.
The San Joaquin Valley Air District has adopted
an “indirect source” rule to control emissions
that occur as a result of new development.
In
other words, they are targeting emissions
generated by the vehicles of those who
eventually buy the new homes in the project. If
they don't do enough to preserve air quality,
they must pay fees that have averaged $500 per
house. Never mind that all of these vehicles are
already regulated by state and federal agencies.
Now local agencies are forcing project
proponents to find additional ways to reduce
those emissions or pay a fee if they are unable
to do so.
The intention is that the fees would
go to reduce emissions from other, as yet
unregulated, sources. In the San Joaquin Valley
that generally means agricultural pumps and
equipment. The absurdity is that there is no
proof that these projects actually generate
additional or increased emissions.
In fact, you
could as easily assume someone purchasing a new
home in a new development might be buying a home
closer to work, actually reducing their daily
commute emissions. Nor does the rule take into
account the fact that new construction is much
more energy-efficient than existing development,
and therefore, reduces emissions from heating,
lighting and water sources compared to existing
development.
This first-in-the-nation rule is
expected to generate tens of millions of dollars
in revenue for the local air district. This rule
sets a dangerous precedent. By surviving the
court challenges brought by homebuilders and the
construction industry, it now becomes best
available control technology (BACT) that must be
adopted by other jurisdictions that have not met
their air-quality goals.
The Bay Area district,
along with Sacramento and South Coast districts,
are now exploring similar rules for new
development in their areas. There are very few
options for new development to control the
emissions generated by the owners or tenants of
the buildings once they are completed. What it
really means is most project owners will have to
pay fees to “offset” emissions generated
somewhere else by someone else.
The construction
industry has been active in discussions with the
local districts to craft rules that allow for
project designs that will reduce emissions,
rather than force the payment of fees. After
all, if there really are increased emissions
from these projects then there should be an
opportunity of reduce them onsite. If not, there
is serious doubt the emissions really exist, or
can be controlled, by these “indirect” methods.
Unfortunately, the liberal federal appeals
courts in California has now paved the way for
these “indirect source” rules to be legislated
across the nation. No decision has been made yet
to appeal to the Supreme Court.
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