In a case that could affect certain large, local businesses venting exhaust, environmental justice advocates are gearing up for a court fight with the region’s air district over its system of crediting commercial operations that buy offsets to make up for their emissions.
Five activist groups sent the San Joaquin Valley Air Pollution Control District a notice March 21 saying they plan to file suit in May alleging the agency has failed to correct its own past reports — and therefore has additional work to do under the federal Clean Air Act — based on faulty calculations for how much pollution needed to be offset through measures such as emission reduction credits, or ERCs.
The detailed, 22-page letter builds on findings by the California Air Resources Board in mid-2020 that the district for years overestimated gains achieved in instances where pollution-emitting businesses closed and ag equipment such as irrigation pumps were converted from diesel to electric power.
The implication for local industry could be, if the environmental justice groups prevail in court, that a reassessment could lie ahead for large businesses that bought ERCs in order to win the district’s approval to open or expand their operations during certain, still-undetermined years past.
Environmental justice groups raising the claims say that, by failing to require stronger action on the part of polluters, the district has permitted industry to subject disadvantaged communities to ground-level ozone and volatile organic compounds, or VOCs, known to pose a variety of risks to human health in a region that consistently ranks as having some of the nation’s dirtiest air.
“By using unlawful regulatory loopholes, the air district has sacrificed public health and safety for the sake of industry polluters,” staff attorney Grecia Orozco with the Center on Race, Poverty & the Environment said in a news release.
An air district spokeswoman said the agency is reviewing the letter but had no comment because the matter involves pending litigation.
An oil industry representative serving on the district’s public advisory workshop on ERCs, Senior Regulatory Affairs Manager Christine Luther Zimmerman with the Western States Petroleum Association trade group, defended the district’s credits program and associated rules as the strictest, most conservative in the country.
In an email statement, Zimmerman noted the U.S. Environmental Protection Agency and CARB have driven “aggressive and careful analysis and revision” of the district’s ERC program.
“A robust, viable program is essential to the development of public infrastructure and economic growth in the San Joaquin Valley,” she stated. “WSPA remains committed to engaging with all stakeholders in advancing the program.”
When CARB accused the district of repeatedly miscalculating ERCs for the benefit of industry, the air district’s top executive, Samir Sheikh, wrote in 2020 that the state’s objections highlighted competing interpretations of the district’s own rules. Even so, he agreed to make various changes in response.
But actions the district has taken since that time haven’t gone far enough, according to the letter written on behalf of the Central Valley Air Quality Coalition, Committee for a Better Arvin, Committee for a Better Shafter, CRPE and Delano Guardians.
An important step that so far has not been taken, these groups say, is for the agency to revise its annual reports going back more than a decade that, if corrected, would show more needs to be done to cut ozone and VOC emissions to a level required by the federal government.
It remains to be seen what actions might be required of the district if it were forced to revisit reports going back as far as 2003-04. But the groups raising concerns say the result might be a level playing field for businesses large and small, as well as more evenly shared burden between residents and industry.
Sheikh acknowledged in a letter Sept. 17, 2020, to the district’s governing board that CARB’s review “raised valid questions” about ERCs related to business closures and ag equipment power conversions. He said the agency should provisionally withdraw ERCs issued in the two categories, at least until the workgroup could help develop changes allowing reintroduction later of an “appropriate portion” of related credits. The board then approved his proposal.
As a result, the district’s subsequent reports to the U.S. EPA failed to show the measures it has taken demonstrated regulatory equivalency with the Clean Air Act.
The letter sent to the district Tuesday suggests similar findings could be made retroactively, though it did not say when or even whether a look back would ultimately identify a lack of equivalency with federal standards.
