Fresno judge closes loophole that polluting diesels were driving through

A Fresno County judge has ruled the California Air Resources Board violated the California Environmental Quality Act when it eased up on major air-quality regulations for some heavy-duty diesel trucks and buses that have been polluting the state.

One of the plaintiffs in a lawsuit against the board, John Lawson, the owner of a Fresno trucking company, called Judge Mark’s Snauffer’s ruling a victory for clean air and fair competition.

In his ruling this week, Snauffer granted the request by Lawson and the California Trucking Association for a writ of mandate that will require the state agency to comply with rules it had enacted to reduce diesel emissions.

The state agency was sued in 2014 when it amended its rules to give small trucking operations more time to comply with new regulations designed to clean up diesel emissions.

Lawson said the amendment created unfair competition between trucking companies like his, which spent millions of dollars to comply with the new regulations, and trucking companies that shunned the rules. The amendment contradicted the state agency’s mission to clean the air, he said.

“If you make a rule, you should stand by it and not give some people a pass,” said Lawson, 76, who has been in the trucking business for 50 years.

In the lawsuit, Lawson Rock and Oil Inc. and the California Trucking Association contended the California Air Resources Board did not follow the proper procedures of the Administrative Procedures Act and the California Environmental Quality Act in adopting the amendments. The association also alleged their members’ economic interests were harmed by being undercut competitively by diesel fleets that took advantage of the flexibility provisions.

In a news release, Air Resources Board officials said Snauffer’s statement of decision only affects the amendments adopted in 2014, which the state agency contends provided badly needed flexibility to smaller fleets (three trucks or fewer); lower-use vehicles, including those operated by small farmers; and small fleets in rural areas.

“We strongly disagree with the court and will file an appeal in all possible haste,” said Jack Kitowski, the head of the agency’s Mobile Source Division, which is in charge of putting the regulations into effect.

“We don’t want to see small fleets and farmers hurt by this decision,” Kitowski said.

As the case makes its way through the appeals process, Air Resources Board staff statewide will continue to enforce the regulation and cite vehicles found to be out of compliance.

Board Executive Officer Richard Corey, named as a defendant in the lawsuit, defended the agency’s decision to appeal.

“California led the way by adopting our landmark regulation to clean up dirty trucks, and our air quality has benefited immensely,” Corey said. “In 2014, we recognized the extreme economic pressures experienced by smaller trucking fleets and independent owners as they sought to comply by upgrading or purchasing new equipment. We responded by amending the regulation to make it more flexible for ‘the little guys’ to comply.”

“This court decision negates those amendments and deals a profound blow to the smaller fleets, small farmers and independent owners,” Corey said.

Diesel exhaust contains a variety of harmful gases and more than 40 other known cancer-causing compounds. In 1998, California identified diesel particulate matter as a toxic air contaminant based on its potential to cause cancer, premature death and other health problems.

Shawn Yadon, chief executive officer of the California Trucking Association, said, “This is an important ruling for all businesses operating in California because it supports the requirement that regulatory agencies must evaluate the economic impact of their actions.”

And despite agency delays in enforcing its rules, the trucking industry continues to spend approximately $1 billion each year to implement a sweeping set of air quality rules aimed at reducing emissions by more than 90 percent, Yadon said.

Though he doesn’t view himself as an environmentalist, Lawson said, “Everyone knows Fresno and the entire Valley has dirty, filthy, nasty air.”

Lawson and the truckers group were represented by attorney Timothy Jones of the Fresno law firm of Wanger, Jones and Helsley. Lawson said he chose Jones because Jones won a high-profile federal lawsuit involving 1,000 acres of damaged pistachio trees and a leaky Madera Canal.

Jones represented Central Green, which sued the owners and operators of the canal: the federal government, the Madera Irrigation District, the Chowchilla Water District and the Madera-Chowchilla Water & Power Authority. The canal delivers irrigation water to farmers.

In 2005, the federal government and insurance carriers for several water agencies agreed to pay a $700,000 settlement to Central Green Co., which argued seepage from the canal damaged its trees and property in southern Madera County. The pistachio orchard is part of Rio Mesa, a high-profile swath of 15,000 acres near the San Joaquin River earmarked for urban-style growth since 1995.

The lawsuit against the Air Resources Board involved the on-road truck rule, approved in 2008, that required owners of older heavy-duty trucks to install particulate pollution filters starting in 2011. Beginning in 2013, owners must replace older engines with 2010 or newer models.

Lawson said the 2008 rule forced him to spend about $8.5 million to purchase a new fleet of 125 clean-burning diesel trucks. Because his old trucks were out of compliance, he said, he was forced to sell them at a cut-rate price.

Lawson said he was angered when the agency “pulled the rug out” from under thousands of trucking companies that complied with the rules by not enforcing them for all trucks on California roadways.

Because the rules were amended and because of the agency’s lax enforcement, Lawson said some trucking companies began to cheat. Some big trucking companies merely divided the company by putting the big rigs in the names of family members so they could appear as small operations. Others kept doing business as usual until they got caught, he said.

“I didn’t do this for me,” he said of his lawsuit. “I did it for everyone in the state who has to breathe filthy air.”

This story was originally published June 10, 2016 at 12:54 PM with the headline "Fresno judge closes loophole that polluting diesels were driving through."