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National Association of Home Builders v. San Joaquin Valley Unified Air Pollution Control District

ELR Citation: 40 ELR 20038
Nos. No. 08-17309, (9th Circ., 12/07/2010)

The Ninth Circuit held that the CAA does not preempt a California air pollution district rule requiring development sites to reduce the amount of pollutants they emit. CAA §209(e)(1) only preempts those standards or requirements relating to the control of emissions from "new" construction equipment. The CAA does not define what "new" means, but EPA has interpreted it to mean "showroom new," that is, never sold. Under this interpretation, §209(e)(1) would not preempt the rule because none of the construction equipment that it regulates could possibly be showroom new. In addition, even if the rule establishes standards or requirements, the rule escapes preemption because its regulation of construction equipment is indirect. The rule does not measure emissions by fleets or groups of vehicles; it measures emissions on a facility-by-facility basis. Its unit of measurement is the indirect source, not the fleet. The rule regulates development sites directly, but as the term "indirect source" implies, it regulates mobile emissions only indirectly. Consequently, the rule is an indirect source review program that is not preempted by CAA §209(e)(1).