Covering the railyard air lawsuit was an interesting opportunity to revisit a story I hadn't seen in a while. KPCC was all over railyard air when the CARB was sussing out ways it might be able to regulate pollution from railyards. But in the end, state air regulators decided to act on zero of thirty-some recommendations that staff made about acting on railyard air emissions. (So it's been a while.)
Obviously, one fascinating wonk legal question is whether NRDC can succeed in applying RCRA to air pollution. (I really have to force myself to remember that the Resource Conservation and Recovery Act is for solid waste, and not sludge; I wonder if judges have the same problem.) But there's a wholly deeper angle UCLA Law Professor Sean Hecht mentioned to me; I wasn't able to get it into the story. Hecht said:
Unfortunately, a lot of our pollution problems are often tied to land use and to the proximity of uses that, on the one hand, might be are industrial, and on the other hand, might have a lot of people that might be affected by it. And that disconnect has created and exacerbated a lot of the environmental problems we have at a local level.
In other words: the laws we're using don't always work in perfect concert to do what we want them to do. Land use laws can have nothing to do with air pollution, and historically, haven't. If you're wondering why a middle school is over a wall from a rail yard, your hindsight about having schools and neighborhoods near rail yards is 20/20.
The first big wave of environmental laws in the US, around 40 years ago, were created and contemplated with a specific set of realities in mind. But then those laws started to work. Now the Endangered Species Act bangs into climate rules: do we care about the ring-tailed lemur, or do we care about changing the way people think about their contributions to climate change? Marine policy has its conflicts, too. Are we trying to bring back rockfish, or manage the ocean spatially? (Yes, is the answer to all false dichotomies.) You add in land use and planning law, which itself is in the middle of getting transformed by SB 375, which mandates thinking about climate change in regional planning, and you can see that we're juggling a lot of values that are changing in size and shape.
You can argue that we don't make better land use rules because we don't need nor want them. Or that using RCRA to regulate air pollution isn't legal because we do have a Clean Air Act and (some) federal rules that apply to railyards. But the reason it's worth asking about how zoning and land use plays into this issue is that we've decided we want to ship goods through the ports of Long Beach and Los Angeles. And we currently let people live in neighborhoods next to yards those goods move through.