The Ninth Circuit Court of Appeals has affirmed the dismissal of a challenge by environmental groups to the air emissions credit system used by California’s South Coast Air Quality Management District (SCAQMD) to offset new sources of air pollution. NRDC v. SCAQMD, No. 09-57064 (9th Cir. 6/29/11). At issue was an internal bank of offset credits SCAQMD issued under the Clean Air Act (CAA) and an EPA-approved state implementation plan (SIP). The district court dismissed the lawsuit in January 2010, ruling that the CAA provision that allows citizens to sue for enforcement of “emissions standards or limitations” does not authorize suits over SIP implementation.
Agreeing with the district court, the appeals court found that plaintiffs failed to allege a violation of an EPA rule or the SCAQMD’s portion of the SIP and that plaintiffs should have filed a petition for review in 1996 or 2006, following EPA’s approval of the SCAQMD method for calculating emissions reduction credits. The emissions offset program seeks to offset new sources of air pollution with reductions in emissions of nitrogen oxides, sulfur dioxide, particulate matter, carbon monoxide, and volatile organic compounds.