Fairness in the Air: California's Air Pollution Hearing Boards

TABLE OF CONTENTS I. INTRODUCTION II. HEARING BOARD BASICS A. The Members B. "Getting Through" to the Members III. VARIANCES A. Variance Applications B. The Questions to be Answered C. Orders 1. Explaining the Findings 2. Duration 3. Conditions D. Interim Variances E. Emergency Variances F. Variance Variations 1. Product Variances 2. Links to Federal Law G. General Observations IV. ABATEMENT ORDERS A. Burdens and Penalties B. A Variance by Any Other Name C. Proof D. Terms and Conditions E. Approaches to Abatement Proceedings V. PERMIT DISPUTES A. Varieties of Permit Disputes B. Standard of Review C. To CEQA or Not to CEQA D. Approaches to Permit Cases VI. CHANGES, CONTROVERSIES, AND CONFUSIONS A. Changes B. Controversies C. Confusions VII. CONCLUSION I. INTRODUCTION Air pollution law is complicated. The statutes and regulations are based on technical knowledge, and educated guesswork, drawn from various fields of environmental and health science and engineering. The complexity and frequent uncertainty of that information contribute to legal mandates which are laden with technical jargon and are often reevaluated and changed. (1) The complexity of these laws is compounded in California by this state's unique, multilayered division of governmental authority over air pollution. Another complicating factor is the unrelenting political sensitivity of the topic. The political stakes are high for many reasons, with the economic implications of pollution control topping the list. Despite this complexity, or perhaps because of it, there is no doubt that a lot has been accomplished to improve air quality in California, both before and since the federal government assumed its heavy role in air pollution regulation. There also is no doubt that much more needs to be done. There is recurrent doubt, however, about whether California's regulatory system is fair, especially in its treatment of air pollution sources and the specific communities they affect. This article examines California's air pollution hearing boards, an important regulatory forum with direct bearing on this question. These boards are unique in many respects, for they are not quite the same as anything else in California environmental and land use regulation. One of their most striking characteristics is that the hearing boards are predominantly composed of individuals who are not air pollution experts, even though the decisions they make usually involve technical questions, often of an extraordinarily sophisticated nature. Most significantly, the hearing boards are a key feature--indeed the key feature--of California's attempt to ensure that fairness is a consistent component of government efforts to clean and protect the air. Regulation of air pollution from stationary sources in California is primarily the responsibility of local and regional air pollution control districts (APCDs). (2) In contrast, state government, principally through the California Air Resources Board (ARB), regulates air pollution from most types of motor vehicles. (3) The ARB also plays an important oversight role in stationary source control, but major responsibility there still rests with the APCDs. (4) There are thirty five APCDs in the state, now called either "air quality management districts" (AQMDs)or "air pollution control districts." Most of the published literature on their functions emphasizes their rulemaking or enforcement powers or unusual policy initiatives. (5) This article instead examines their adjudicatory authority, for most of the major conflicts between regulatory authorities and stationary sources in California are brought into the administrative adjudication process, that is, to the APCD hearing boards. Although the hearing boards are little known to the public, they have tremendous importance for air quality throughout the state. …