Court upholds California air regulator's pollution fee

A federal appeals court ruled Tuesday that air quality regulators in California's smog-laden San Joaquin Valley have the right to charge home builders a fee to control their pollution emissions.

A three-judge panel of the U.S. 9th Circuit Court of Appeals in San Francisco upheld the local air district's rule requiring developers to reduce emissions from new housing projects by building features like bicycle lanes and energy-efficient cooling systems. If they don't do enough to preserve air quality, they must pay fees that have averaged about $500 per house.

The valley, stretching 240 miles from Stockton to Bakersfield, is one of the dirtiest air basins in the nation for emissions that create ozone, the main ingredient of smog.

The Fresno-based district was the first in California to impose such a rule in 2005, and other regions still look to it as a model to control pollution from construction equipment and suburban sprawl.

"This a long-awaited, welcome decision by the court, and I'm hoping that this will be the end of it," said Seyed Sadredin, executive director of the San Joaquin Valley Air Pollution Control District. "We are eager to continue working with valley developers to clean up our air."

The rule allows construction companies to reduce emissions through a variety of means, including using cleaner bulldozers and backhoes or building near public transit, Sadredin said.

In 2007, when the construction industry was still paving over cropland to build dozens of new subdivisions, the National Association of Home Builders challenged the rule in federal court, saying vehicles were the problem, not new homes and businesses. The national federation claimed the air district lacked the authority to regulate tailpipe emissions and claimed it was the responsibility of the U.S. Environmental Protection Agency.

A Fresno federal court ruled in favor of the air district in 2008, and the 9th Circuit upheld that ruling Tuesday.

Amy Chai, senior counsel for the home builders association, said the organization remained concerned about the rule's impact on the local industry, which has suffered heavily in the economic downturn in the foreclosure-ridden valley. Officials have not ruled out an appeal to the Supreme Court, she said.

"We filed this suit four years ago, and sadly a lot of our members are no longer in business," Chai said. "We are disappointed."

Sadredin said the collapse in the construction industry meant the air district collected far less in fees than it had originally projected before the recession began - just $16 million over the last five years, as opposed to the initial estimate of up to $30 million per year.

Clean air activists - including the environmental law group Earthjustice, which has opposed local regulators in the past but intervened in the air district's favor in this case - said they were pleased by Tuesday's ruling.

© 2010 The Associated Press. All rights reserved.

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