The California Supreme Court has issued a ruling upholding the South Coast Air Quality Management District’s authority to enact air-quality rules on architectural and industrial maintenance coatings, even if those rules are based on technology that has yet to be developed.
Wikicommons/Basil D Soufi
|Setting a clear precedent: The state Supreme Court decision means SCAQMD will have the authority to enact air-quality regulations that do not meet the test of current technological capability, industry representatives say. Above: A view of the Los Angeles skyline.|
The American Coatings Association (ACA) voiced disappointment with the decision, saying it fears the ruling “grants the district unfettered authority to regulate stationary sources of emissions and impose pollution controls, based on technology that, in fact, is not reasonably available for critical categories of coatings when the regulation is implemented.”
The ruling, issued Monday, apparently concludes a lengthy legal battle pitting paint and coatings manufacturers against the South Coast district (SCAQMD). The manufacturers, represented by ACA, had unsuccessfully challenged stringent VOC limits on a number of significant types of architectural and industrial maintenance coatings. Most of those limits had been upheld in an earlier state appeals court decision.
In its decision issued Monday, however, the state Supreme Court reversed the appeals court’s finding that SCAQMD did not have authority to enact rules based on technologies that do not currently exist. The Supreme Court decision is significant in that it means SCAQMD—and other regulatory agencies—won’t have to show that future regulations are not beyond the reach of industry’s technological capabilities, sources said.
In the ruling, the Supreme Court said state law gives SCAQMD the “authority to promulgate pollution standards based on technologies that do not currently exist but are reasonably anticipated to exist by the compliance deadline. In addition, we conclude that the District sufficiently demonstrated that its challenged emissions limits were achievable in each category and that the categories were reasonably drawn.”
The SCAQMD sets air-quality regulations on stationary (non-vehicular) sources in Los Angeles and adjacent areas, and has set the bar high in enacting the nation’s toughest rules on VOC content in paint and coatings. The district’s Rule 1113 imposes stringent VOC limits on a wide range of architectural and industrial maintenance coatings.
The VOC limits targeted in a lawsuit filed by the American Coatings Association (ACA) actually went into effect between 2003 and 2006, and affect a significant number of important product types, including the category of primers, sealers and undercoaters, nonflat, industrial maintenance and floor coatings, and several others. But manufacturers, led by ACA, did not challenge a lower-court ruling that upheld most of those new, lower VOC limits.
The industry, however, had applauded the appeals court’s finding that SCAQMD needed to comply with state law indicating that new rules had to meet the test of existing technological capabilities.0
The amendments to the limits, part of the district’s Rule 1113 on architectural and industrial maintenance coatings, pushed VOC limits to as low as 50 grams per liter for some of the product types including nonflat coatings, with the limit for industrial maintenance coatings dropping to 100 g/L in 2006.
Current VOC limits on all types of architectural and industrial maintenance coatings are listed in the table of standards of SCAQMD Rule 1113.
In its previous legal challenge, ACA said the Rule 1113 amendments exceeded SCAQMD’s regulatory authority under state statutes requiring the use of “best available retrofit control technology.” The association lost its case against the rules in the previous appeals-court decision, with the exception of limits on rust-preventative coatings and quick-dry enamels. In the case of those coatings types, the appeals court said SCAQMD had exceeded its authority as prescribed by state law.
SCAQMD appealed the ruling to the Supreme Court, however, leading to Monday’s decision reversing the appeals court.
In Effect, the Power to Ban Products?
“The biggest issue was what the district has the authority to do,” one industry source in California told D+D News. With its ruling the Supreme Court in effect is saying that SCAQMD has the power to “ban products” that can’t be formulated to meet technology-forcing rules, the source said.
Coatings manufacturers and users may not have to wait long to see how the Supreme Court decision makes waves. SCAQMD is currently in the process of formulating its next five-year air quality management plan, and has signaled that new, lower VOC limits on architectural coatings are likely to be in play, industry sources say.
Meanwhile, SCAQMD critics say existing VOC limits set by the district have already slashed emissions dramatically. The district’s 2007 air quality management plan projected VOC emissions from architectural and industrial maintenance coatings would fall from just under 49 tons per day in 2002 to 24 tons per day in 2014. But current data indicates the region in on course for a decline to 15.8 tons per day by 2014.
“And now they want to get an additional four to five tons per day from architectural coatings,” an industry source said of the current SCAQMD discussions.
Fallout Could Cause Exits
from Market, ACA Says
In a statement on the Supreme Court ruling, ACA said the paint and coatings industry for years “has continually worked with regulatory agencies in California, and strives to reformulate its products to reduce their environmental impact and ensure their safe and effective use in the face of increasingly stringent regulations.”
South Coast and other air districts, however, “have been overly optimistic in predicting future technology that will allow for the high-performance products that consumers and businesses expect and need,” the association said. “The court’s ruling will now require paint and coatings manufacturers to reassess whether it is feasible to remain in the market in Southern California, since doing so could negatively affect their ability to produce high-quality, high-performing products.
“This decision will undoubtedly increase regulatory uncertainty for not only paint and coatings manufacturers, but other companies wishing to do business in the unstable California market,” ACA said.