627 F.3d 730
9th Cir.2010Background
- Rule 9510 requires development sites to reduce NOx by 20% and PM10 by 45% from a site baseline calculated from typical California construction equipment.
- NAHB alleges Rule 9510 is preempted by the Clean Air Act (CAA).
- District and intervenors defend Rule 9510 as a valid indirect-source-review program under CAA §110(a)(5).
- Rule 9510 measures emissions and reductions at the development-site level, not at the level of individual engines or vehicles.
- Mechanisms to comply include cleaner equipment, add-on controls, cleaner fuels, or paying fees to fund reductions elsewhere; EPA approval of Rule 9510 was pending during litigation.
- EPA had not yet issued final action on Rule 9510 at the time of the appeal, though proposed approval was published later.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 9510 is preempted by §209(e)(1). | NAHB argues Rule 9510 targets nonroad construction equipment as 'new' engines. | District contends §209(e)(1) does not apply because Rule 9510 is site-based indirect-source regulation. | §209(e)(1) is inapplicable to Rule 9510. |
| Whether §209(e)(2) impliedly preempts Rule 9510. | NAHB asserts Rule 9510 creates nonroad-vehicle standards. | Rule 9510 is indirect-source regulation, not a vehicle/engine standard. | Rule 9510 is not impliedly preempted by §209(e)(2). |
| Whether Rule 9510 qualifies as an indirect source review program under §110(a)(5). | NAHB argues Rule 9510 targets direct emissions sources (construction equipment). | Rule 9510 regulates emissions from development sites as indirect sources. | Rule 9510 satisfies §110(a)(5) as an indirect-source-review program. |
| Whether Rule 9510's structure would be preempted as a 'standard' under §209(e)(2). | Rule 9510 imposes standards on construction equipment reductions. | Regulation is indirect and measured against a site baseline. | Rule 9510 avoids preemption because its regulation is site-based, not a direct vehicle/engine standard. |
Key Cases Cited
- Engine Mfrs. Ass'n v. EPA, 88 F.3d 1075 (D.C.Cir.1996) (designates EPA's interpretation of 'new' for Chevron deference context; supports indirect-source framework)
- South Coast Air Quality Mgmt. Dist. v. Pub. Serv. Comm'n, 541 U.S. 246 (U.S. 2004) (definition of 'standard' under §209(e)(1) relating to emissions from vehicles)
- Pacific Merchant Shipping Ass'n v. Goldstene, 517 F.3d 1108 (9th Cir. 2008) (fleet-based emission standards and preemption considerations under §209(e)(2))
- Sierra Club v. Larson, 2 F.3d 462 (1st Cir. 1993) (indirect-source concept and delegation to states under §110(a)(5))