Clearing Skies

A FEDERAL JUDGE HAS RULED that an air-pollution control agency in Southern California can enforce regulations requiring state and local fleets to purchase lower-emission vehicles. The Diamond Bar, Calif.-based South Coast Air Quality Management District (SCAQMD), which oversees clean-air efforts in California's Orange, Los Angeles, San Bernardino and Riverside counties, now will decide if it will apply the rules to private fleets that have contracted with state and local governments.

“We're happy that [U.S. District Court Judge Florence-Marie Cooper] has acknowledged our authority to regulate public fleets,” says Kurt Wiese, district counsel for SCAQMD.

Five years ago, SCAQMD adopted regulations to reduce air pollution by mandating public and private operators of fleets with 15 or more trash collection vehicles, street sweepers and other vehicles to buy or lease certain lower-emission vehicles when adding or replacing equipment. The Engine Manufacturers Association (EMA), Chicago, and the Western States Petroleum Association (WSPA), Sacramento, Calif., challenged the rules in federal court. The groups claimed that the federal Clean Air Act, which prohibits states and local governments from adopting their own emission standards for new vehicles and engines, pre-empts the rules.

The federal district court upheld the rules after determining that they only regulate the purchase of vehicles and do not impose new emissions requirements on manufacturers. A federal appeals court affirmed the district court's ruling. However, in 2004, the U.S. Supreme Court ruled that the fleet regulations do not necessarily escape pre-emption just because they address the purchase of vehicles and remanded the case back to Cooper for final resolution.

Based on the content of the Supreme Court's decision, SCAQMD decided to keep applying the regulations to public fleets, but not to private fleets contracted with state and local governments or to any other private fleets.

In her decision, Cooper determined that the regulations regarding state and local fleets and their purchases of lower-emissions vehicles fall outside the scope of the Clean Air Act and therefore meet constitutional muster. Because the two plaintiffs brought a “facial challenge” to the rules, meaning that they challenged the regulations in their entirety, they had to show that there is no constitutional application of any of them. The judge did not rule on any other components of the rules. A finding that any of the applications is constitutional was enough to dismiss the plaintiff's claims, Weiss says.

SCAQMD hopes to determine within a couple of months whether a private fleet under government contract constitutes a public fleet, Wiese says. As of press time, the plaintiffs had not decided whether to appeal Cooper's ruling. Instead of appealing the judge's decision on the facial challenge, EMA and WSPA could instead decide to challenge each of the regulations individually, Wiese explains.

In other air pollution news, New York has passed a series of laws aimed at reducing emissions from its truck fleets, including sanitation vehicles. One of the laws requires the city's on-road vehicles to use ultra-low sulfur diesel (ULSD). Another mandates that the Department of Sanitation “assess the feasibility of incorporating new alternative fuel sanitation vehicles and technology into its own fleet” and also calls for a 20 percent increase in fuel economy among new vehicles purchased by the city. An additional regulation requires the use of ULSD in vehicles “used in fulfilling city solid waste and recycling contracts.”

Also, the Washington-based U.S. Environmental Protection Agency has extended the compliance date for retailers to begin selling diesel with 15 parts per million (ppm) from Sept. 1, 2006, to Oct. 15, 2006. During the six weeks between the dates, retailers can sell and market diesel with 22 ppm as ULSD.

The use of 15 ppm diesel fuel is part of a federal effort to cut down on air pollution. In 2007, new diesel engines will be required to dramatically reduce their emissions.

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