I suppose the Governing Board of the South Coast Air Quality Management District (SCAQMD) was listening to the Judas Priest song, Breaking the Law, this morning before it held its public hearing on Proposed Rule 317.  SCAQMD is one of the agencies that is charged with implementing the Clean Air Act in Southern California.  Before the Governing Board today was a rule that would implement a requirement in the Clean Air Act that is triggered when regions fail to meet federal clean air standards.  The rule only applies to the largest stationary sources of pollution in the region (e.g. refineries, power plants, etc.).  Because Los Angeles' air is chock full with deadly smog, the region will not meet clean air standards for ozone by 2010. Thus, this fee provision will be triggered to help push the region to meet these clean air standards and reduce toxic air emissions from large, polluting stationary sources. This fee mechanism was written into the Clean Air Act nearly 20 years ago and should not come as a surprise to local polluting industries since LA's air has never met federal air quality standards for ozone. This is just the first time LA's polluters will have to pay the fee, as outlined in the Clean Air Act. The fee also doesn't kick in until 2012 and provides an incentive to businesses to reduce their pollution in the long run, which will ultimately reduce their potential pollution fine. Here is how the hearing played out. 

Many industry lobbyists and businesses came to testify against the rule today.  However, the most relevant factor related to the Board's decision to take a turn down illegal road was testimony by an industry lobbyist who claimed the Clean Air Act contained flexibility to allow exemptions for certain polluters like those that have already placed pollution controls on their equipment. Upon actually reading the text of the Clean Air Act, it becomes apparent that the lobbyist was interpreting what this lobbyist wished the law states, instead of what it actually states.  While I would relish the ability to make lawful my fanciful interpretations of the law based on my whims, courts throughout the nation, including the United States Supreme Court, have determined that this is an invalid approach.  Our court system operates in the real world, not some fanciful Alice in Wonderland state.  In fact, I agree with one of the industry lobbyists who claimed the Clean Air Act provision is a "regulatory gun" that requires the SCAQMD to adopt a fee rule and does not permit exemptions for some of the largest polluters in the region.  At the end of the hearing, a Board member asked the staff to come back at the June meeting with a proposal that allows exemptions for certain polluters.  Stated bluntly, the Clean Air Act does not support this approach. 

The Board has asked its staff to turn the Clean Air Act on its head.  I understand we are in a recession, and I think adding a fee is a delicate, tough issue.  However, the recession itself does not provide cover for people -- especially our government -- to break the law.  If this were the case, we would have mayhem and lawlessness in the streets.  The appropriate remedy in this case if the District thinks the fee is unfair is seeking a legislative change.  However, I must admit that this is like a loser in Monopoly trying to change the rules near the end of the game to make the winner the person with the least amount of money.  Here, the SCAQMD, the California Air Resources Board and other agencies took a gamble in not having a viable plan to meet clean air standards.  Now, penalties are being put in place, and these penalties are tough for some.  We are willing to work with stakeholders to help develop approaches that will minimize the impacts from this regulation (e.g. developing a program to help those small, highly polluting businesses that will be subject to this rule).  We will also work with everybody to make sure the funds collected by this rule are distributed to clean the air in a fair, transparent manner.  All in all, we simply want compliance with the law, and we will demand just that at the June hearing.